In an interim rule effective November 5, 1999, and published in the Federal Register on December 29, 1999 (64 FR 72912-72913, Docket No. 99-096-2), we amended the regulations governing the importation of pork and pork products by adding Portugal to the list of regions where African swine fever exists. This action restricted the importation of pork and pork products into the United States from Portugal and was necessary to prevent the introduction of African swine fever into the United States.

Comments on the interim rule were required to be received on or before February 28, 2000. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

This rule affirms an interim rule that amended the regulations governing the importation of pork and pork products by adding Portugal to the list of regions where African swine fever exists. We took this action because of an outbreak of African swine fever in Portugal. The interim rule restricted the importation of pork and pork products into the United States from Portugal and was necessary to prevent the introduction of African swine fever into the United States.

The following analysis addresses the economic effect of this rule on small entities, as required by the Regulatory Flexibility Act.

The interim rule restricts the importation of pork and pork products into the United States from Portugal. Because Portugal has never exported pork or pork products to the United States, this rule will have no economic effect on U.S. swine importers, hog meat processors, hog producers, or any other entities, large or small.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

The regulations in 9 CFR part 130 (referred to below as the regulations) list user fees for import- and export-related services provided by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (the Department), for animals, animal products, birds, germ plasm, organisms, and vectors. We are amending the user fees for these import- and export-related services to reflect the increased costs of providing the services.

These user fees are authorized by § 2509(c)(1) of the Food, Agriculture, Conservation, and Trade Act of 1990, as amended (21 U.S.C. 136a). APHIS is authorized to establish and collect fees that will cover the cost of providing import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors.

Since fiscal year (FY) 1992, APHIS has received no directly appropriated funds to provide import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors. Our ability to provide these services depends on user fees. We change our user fees through the standard rulemaking process of publishing the proposed changes for public comment in the Federal Register, considering the comments, publishing the final changes in the Federal Register, and making the new user fees effective 30 days after the final rule is published. This rulemaking process can be lengthy. As a result, our user fees have usually reflected less than our actual cost to provide services. Since implementing these user fees in 1992, we have only adjusted the user fees for cost changes twice. Most of the user fees have not been adjusted for cost changes since 1996—four years.

For our user fees to cover our costs so that we can continue to provide services and to inform our customers of user fees in time for advance planning, we proposed to set user fees for our import- and export-related services in advance for fiscal years 2000 through 2004. Our proposal was published in the Federal Register on September 30, 1999 (64 FR 52680-52694, Docket No. 97-058-1). The proposed user fees were based on our costs of providing import- and export-related services in FY 1999, including costs for rent, equipment replacement, billings, collections, and maintaining a reserve, plus adjustments for inflation and anticipated annual increases in the salaries of employees who provide the services. We included costs for rent because we were directed to do so as the result of an audit. We included costs for equipment replacement and maintaining a reserve because the Department determined that these costs are part of the full cost of providing services. We included costs for billings and collections because we are assessed for these costs and our user fees have not previously contained a component for them. We estimated inflation at 2.3 percent a year based on the Consumer Price Index (CPI). The estimated CPI is published in the Economic Assumptions table of the Budget for the U.S. Government each year. We used estimated pay increases of 4.4 percent for FY 2000 and 3.9 percent for FY 2001 through FY 2004, published by the U.S. Treasury Department, to calculate increases in the direct labor costs each year.

We also proposed to consolidate the hourly and premium hourly rate user fees for import- and export-related services. These fees were listed in §§ 130.3, 130.5, 130.9, 130.10, and 130.21. We proposed to list them in one new section, § 130.30. In addition, we proposed to list the minimum user fee for import- and export-related services in one section—§ 130.30. This fee was repeated in §§ 130.3, 130.5, 130.6, 130.7, 130.9, 130.10, and 130.21. These proposed changes were intended to eliminate duplication and make the hourly, premium hourly, and minimum rates easier for our customers to locate.

Additionally, since the Miami Animal Import Center has never been used as an exclusive use quarantine facility, we proposed to remove user fees for the exclusive use of the Miami Animal Import Center from the listing in § 130.3.

We solicited comments concerning our proposal for 60 days ending November 29, 1999. We received 68 comments by that date. They were from representatives of the artificial insemination industry, exporters, veterinarians, and a State department of agriculture. They are discussed below by topic.

Comment: Are you adding costs for inflation at 2.3 percent a year based on the Consumer Price Index in addition to the proposed pay increases?

Response: We increased the direct labor cost element by the estimated pay increases. We increased all other operating costs (i.e., direct materials, indirect labor, utilities) by 2.3 percent a year for inflation based on the Consumer Price Index.

Comment: We oppose the proposed increases in import- and export-related user fees.

Response: We are no longer appropriated funds for these services. Most of these user fees have not changed since 1996; some have been in effect longer. Therefore, to continue providing these services, we must recover our costs from the customers who benefit from our services. We are authorized to do this through user fees. As our costs increase, we must increase our user fees. We will continue to monitor our fees and control our operating and staffing costs to provide services as inexpensively as possible. Therefore, we are making no change to the rule in response to this comment.

Comment: User fees should be increased as the need arises. They should not be set several years in advance.

Response: Our import- and export-related user fees are calculated based on our employee salaries and other costs as described in the proposal. We know from budget estimates and economic forecasts that these costs are expected to increase by a small percentage each year.

As discussed in our proposal, we plan to review these user fees each year, and we continually evaluate our funding needs. The purpose of multi-year user fee rates is to allow the user fees to increase as our need for additional funding increases and to allow users to incorporate the fees into their budget planning. Therefore, we are making no change to the rule in response to this comment.

Comment: If user fees are established for multiple years in advance, then user fee customers will not have an opportunity to comment about user fee rates during the period that those user fees are in effect. The user fee rates will not be responsive to industry needs.

Response: By setting user fees in advance for a 5-year period, we are responding to comments we received in response to past proposals. Those commenters stated that it was difficult to make business plans without knowing in advance when fees would change and by how much. Also, commenters in the past have objected to large fee increases, even though they occurred infrequently. We believe adopting user fees for 5 years in advance addresses these concerns. Under this rule, business planning should be easier, and fee increases will be more gradual. Customers have had the opportunity to comment on the user fees through this rulemaking process. In addition, customers may offer suggestions and comments on user fees at any time. For example, APHIS established a flat rate use fee in lieu of the hourly rate user fee for embryo collection center inspection and approval at the request of an industry association. (See 63 FR 71728-71729, Docket No. 98-005-2, December 30, 1998). Therefore, we are making no change to the rule in response to this comment.

Comment: Producers are already paying enough taxes, and these user fees are double taxation.

Response: A tax is money paid to support Government operations that benefit the general public. A user fee is money collected for a specific service provided to a readily identifiable recipient. The Food, Agriculture, Conservation, and Trade Act of 1990, as amended (referred to below as the Act) authorizes the Department to prescribe and collect user fees to reimburse the cost of carrying out certain import- and export-related services for animals, animal products, and veterinary diagnostics. The Act further states that “[a]ny person for whom an activity related to the importation, entry, or exportation of an animal, article, or means of conveyance or relating to veterinary diagnostics, is performed pursuant to the section, shall be liable for payment of fees assessed.” APHIS user fees are designed to recover and fund the cost of providing specific services. As such, our user fees are fees for specific services provided to a certain portion of the public and, therefore, do not constitute a tax. Therefore, we are making no changes based on this comment.

Comment: Increasing the user fees places an undue burden on U.S. exports at the same time the Government is spending tax dollars to promote the export of agricultural products.

Response: Congress directed us to charge user fees for these services. Congress decides how tax dollars are allocated. Congress has not allocated additional funds for our import- and export-related services for animals and animal products. Therefore, in order to continue providing import- and export-related services, we must charge user fees, and, under our user fee authority, we must charge user fees which will recover the full cost of providing services. We realize that increases in the user fees will increase the up-front cost of doing business for importers and exporters. However, before APHIS began collecting user fees for import and export services, users were subsidized by the taxpayers in general. Those who received services from APHIS were not charged and the services were paid for through appropriated taxpayer dollars. As appropriated funds are no longer available to pay for these services, users must pay for them through user fees. We attempt to minimize the cost of our services to keep APHIS user fees at the lowest possible level. We do not anticipate that exports will decline significantly as a result of these increases in user fees. Therefore, we are making no changes based on this comment.

Comment: The U.S. agricultural economy is in bad financial condition. One of the ways we can boost the U.S. agricultural economy is to increase exports of animals and animal products. We currently have a negative balance of trade in germ plasm. Economic crises in Asian countries, the strong U.S. dollar, and European Union subsidies of live animal exports are examples of current trends that keep U.S. agricultural exports low. These user fee increases will escalate prices, make U.S. animals less competitive for export, and seriously hamper the ability of U.S. exporters to increase exports of U.S. agricultural products. Currently, other competitor countries, such as Canada, have no user fees.

Response: Although some countries do not currently charge for import- and export-related services, user fees for these services are being adopted by more and more countries. In fact, as of May 3, 1995, Canada charges user fees for certain import- and export-related animal health services (see May 3, 1995, Canada Gazette Part II, Vol. 129, No. 9, SOR/DORS/95-198). Therefore, we do not believe that U.S. exporters are at a competitive disadvantage compared with exporters in other countries because of APHIS user fees. Therefore, we are making no changes based on this comment.

Comment: You should make a greater distinction between imports and exports. Live animal exports should be given greater priority and provided with better and less expensive services from APHIS because they are absolutely essential to the U.S. economy.

Response: Our user fees do not distinguish between imports and exports. Our user fees are calculated to recover the full costs of the services that we provide. Because of budget constraints, we do not have the option to charge user fees that recover less than the full cost of providing a service. If we did so, we would not collect enough money to support the service. However, we have attempted to minimize the cost of our services, thereby keeping APHIS user fees at the lowest possible level. We are making no changes based on this comment.

Comment: The proposed increases for the hourly rate user fees and the user fees in § 130.8(a) for semen imports are too high. The hourly rate user fee would increase by $20, from $56.00 to $76.00 per hour. The user fee for semen imports would increase from $39.50 to $54.00.

Response: This is the first increase in these user fees since 1996 (see 61 FR 20421-20437, Docket No. 92-174-2, May 7, 1996). We need to increase these user fees because, as stated in the proposal, operating costs have increased. In addition, the fees established in 1996 did not take into account our costs for rent, equipment replacement, billings, collections, and maintaining a reserve. The fees in this rule reflect both the increase in costs and the inclusion of cost components that had not been included before. They also reflect projected salary increases for the employees who provide the services. Therefore, we are making no changes based on this comment.

Comment: The proposed user fees in § 130.8(a) for germ plasm exports are too high. The user fee for semen exports would increase from $33.50 to $45.00 per certificate. The user fee for embryos exports would increase from $54.75 to $74.00 per certificate in the first year and up to $83.00 per certificate by the year 2003. We realize that there has been no adjustment to the use fee for the endorsement of export certificates for germ plasm since it was first implemented in January 1994. However, the Consumer Price Index (CPI) over this period of time (January 1, 1994 through January 2000) shows an increase of approximately 21 percent, while the proposed user fee increase is approximately 34.5 percent, which is well above the CPI.

Response: As stated in the proposal, operating costs have increased since these user fees were established in 1994 (see 58 FR 67647-67656, Docket No. 92-042-2, December 22, 1993). Also, the original user fees did not take into account our costs for rent, equipment replacement, billings, collections, and maintaining a reserve . We did not propose changes in these user fees in 1996 because the user fees had not been in place long enough to evaluate whether they were sufficient to provide for full cost recovery. The fees in this rule reflect both the increase in costs and the inclusion of cost components that had not been included before. They also reflect projected salary increases for the employees who provide the services. Therefore, we are making no changes based on this comment.

Comment: We are especially concerned about the magnitude of the proposed changes in user fees for the inspection of embryo collection facilities. The user fee for the inspection of embryo collection facilities is increasing from $278 to $337 in the first year and to $380 by the year 2003.

Response: In 1999, the user fee for the inspection of embryo collection facilities was revised from an hourly rate user fee to a flat rate user fee in response to a request from industry (see 63 FR 71728-71729, Docket 98-005-2, published December 28, 1998 and effective January 29, 1999). The user fee was calculated to reflect the average annual cost of providing the service, including the time to provide the service and travel time to the facility. The flat rate annual user fee was arrived at using the average number of hours required for an APHIS inspector to complete an inspection (including travel time), the average number of inspections performed during a year (2 per facility), the average direct labor involved, and a proportional share of support costs, overhead, and departmental charges. We did not, however, factor in our costs for rent, equipment replacement, billings, collections, and maintaining a reserve, which account for most of the increase in the fee in this rulemaking. The fee increases over fiscal years 2000 to 2004 also anticipate annual increases in the salaries of the employees who provide the services. We have made every attempt to keep our costs and our user fees down to the lowest reasonable level. The increases in the user fee are necessary to recover the full cost of our services. Therefore, we are making no changes based on this comment.

Comment: User fees for export certificates should not be increased because exporters print the certificates and prepare them. APHIS should, therefore, charge only a minimal fee for its services.

Response: The user fee for the endorsement of export health certificates is calculated based on the costs we incur to provide our services. APHIS employees endorse export health certificates in accordance with the regulations in 9 CFR part 91. An APHIS endorsement certifies that animals and animal products being exported from the United States are free from communicable diseases. Direct labor activities may include the following: Telephone time for providing information about the export health certification process, mailing information to customers, protocol research, review of paperwork such as health certificates, verification of laboratory test results, confirmation that the importing country's requirements have been met, paperwork completeness review, certification statements review, endorsement/signing, placing an official seal on documents if needed, and completing APHIS paperwork related to the endorsement. Many of the activities listed above must be performed to make it possible for APHIS employees to endorse the export health certificates. We used our accounting data and surveys of APHIS locations nationwide where export health certificates are endorsed to identify the amount of direct labor time APHIS employees spend providing these services. In addition, some people use preprinted forms, while others do not. The user fees were based on averages; therefore, we factored the variations in the type of forms into the user fee calculations. An example showing a minimal user fee for the use of preprinted forms with very routine information is the user fee in § 130.20(b)(1) for endorsing export health certificates for nonslaughter horses to Canada. Even though these horses all require a test, the endorsement process is so routine that we established a separate minimal per certificate user fee instead of a user fee calculated based on the number of horses and the number of tests or vaccinations. Therefore, we are making no changes based on this comment.

Comment: There appear to be inequities in § 130.8 between the user fees for semen exports and those for embryos exports. The user fees for embryo exports are significantly higher than the user fees for semen exports. In addition, the same fee applies for certificates for semen, regardless of how many doses are covered by the certificate. On certificates for embryos, however, the basic fee covers only up to five donor pairs on a certificate; an additional fee applies for each additional group of donor pairs (up to five pairs per group) on the same certificate.

Response: The average time required for us to provide export-related services for embryos is higher than the average time to provide those services for semen. Specifically, we have found that more time is required to answer questions about exporting embryos in advance and to review documentation and statements on the certificates that accompany the embryos for exportation. Therefore, the calculation for the user fees for exporting embryos includes more direct labor hours, and that results in the higher cost. The intention in the tiered user fee structure for the export-related services for embryos was not to limit the number of donor pairs on a certificate, but to recognize the lower costs to provide the same service for the additional donor pairs. We determined that there is a marginal cost decrease to endorse additional groups of donor pairs on the same export health certificate. User fees are calculated to recover only the cost of services. Therefore, the tiered user fee rate, with a lower fee for additional groups of donor pairs on the same certificate, is appropriate, and we are making no changes based on this comment.

Comment: The user fee schedule for inspections of embryo collection facilities should have an initial fee at one rate and a renewal fee at a reduced rate.

Response: Our annual inspection of an already approved embryo collection facility takes a certain amount of time. The first inspection of a facility may take a little longer, but we are not charging more for that first year; instead we built it into the annual user fee so the cost of the inspections is averaged. Therefore, we are making no changes based on this comment.

Comment: We request that you consider establishing a maximum fee for exporting a small shipment of livestock. We suggest a small shipment be 30 or fewer pigs, sheep, or goats, or 15 or fewer dairy or beef animals. These numbers will fill approximately two aircraft pallets. It is our experience that the processing and inspection at the port of export for this size shipment requires an hour or less of APHIS veterinary personnel time.

Response: We have established a maximum user fee for export health certificates that is intended as a cap for the user fee for the endorsement of export health certificates for large shipments (see 65 FR 16122-16124, Docket 98-003-2, March 27, 2000). The maximum user fee ensures that our fixed costs have been covered for large shipments. We have reviewed our flat rate user fees for export health certificates and believe that these user fees are fair for any size shipments, even small shipments. Based on the examples provided in the comment, the small shipment maximum being requested would apply to export-related services provided at our hourly rate user fee. Under § 130.20(c), when exporters are able to have these endorsements done at the inspection site at the same time that we provide inspection and supervision services, then the hourly rate user fee charged for the inspection and supervision services also covers the endorsement services. The hourly rate user fees are based on the actual number of hours it takes to provide our services. Therefore, we believe that these hourly rate user fees are also fair, and we are making no changes based on this comment.

Comment: The user fee in § 130.20(a) for nonslaughter horses to Canada is too low because of the required tests. In addition, the processing of the export health certificates for nonslaughter horses to Canada has changed over time. When the user fee was established, Canada required a separate certificate for each horse. Since 1995, Canada has allowed more than one horse to be included on a certificate, under certain conditions. Therefore, the user fee should be revised to reflect this change. The regulations need to clarify the charges for various forms used for this service. The costs for export certifications with multiple horses are not adequately covered by the user fee for nonslaughter horses to Canada.

Response: The user fee for endorsing the certificate for nonslaughter horses to Canada is lower than the user fee for other endorsements requiring the verification of tests or vaccinations. This is because most certificates for nonslaughter horses to Canada are preprinted forms with complete information (VS form 17-145). Also, there is a single identification to check for these horses versus multiple identifications for cattle and other animals. In addition, there is a single statement on the certificate for these horses, as opposed to multiple statements for cattle and other animals. Consequently, endorsing certificates for nonslaughter horses to Canada is a very standard procedure that takes significantly less time than endorsing other certificates that require the verification of tests or vaccinations. This is why, when we initially established the user fee, we identified it separately from user fees for other endorsements. As the commenter pointed out, however, the certificates initially covered a single nonslaughter horse to Canada. Since that time, exporters have also used VS form 17-140 to cover multiple nonslaughter horses to Canada. Certificates covering multiple horses take longer to process than certificates covering only a single horse. Therefore, we are amending § 130.20(a) to specify that the base user fee covers the first animal on the certificate and that each additional animal on the certificate will increase the fee by $4.

Comment: The minimum user fee for inspecting pet birds entering the United States should not be increased. APHIS should establish a separate minimum user fee for pet birds that would be lower than the minimum user fee for other services.

Response: The minimum user fee covers the basic minimum service that we provide. The minimum user fee was developed primarily to cover the costs of handling unusually small importations at ports of entry. Our user fees are calculated to represent the average costs of providing the service. We cannot predict or control the frequency of unusually small importations. Therefore, we cannot account for the cost of providing service for them when calculating our user fees. To ensure that our basic costs are always covered, we charge a minimum user fee. At a minimum, any service we provide requires a certain amount of fixed costs. These fixed costs include the direct costs of providing the service and indirect costs to support providing a service; for example, to process the paperwork and bill for the services. We cannot establish a lower minimum user fee for inspecting pet birds entering the United States or we would not recover the full costs of providing those services. Therefore, we are making no changes based on this comment.

Comment: The user fees in § 130.20 for export certificates do not capture all of the preparatory services that APHIS provides. The accredited veterinarian checks with the area veterinarian in charge for the receiving country's requirements, which generally takes 10-15 minutes, with an additional 10-15 minutes for clarification. The area veterinarian in charge and export/legal documents examiner review the draft and identify corrections. The accredited veterinarian sends the original to the area veterinarian in charge for endorsement. This is a facet of improved customer service and significantly reduces the situations where animals are loaded but APHIS can't endorse the export certificate. APHIS should increase the user fee to capture all of the costs of the preparatory services.

Response: These user fees are calculated to represent the average costs of providing the service. Therefore, some of the user fees may appear to be too high or too low based on an individual's experience, but in fact represent the average cost of providing the service. In the aggregate, the export certification user fees cover our costs and are not too low. The user fees increases in this document should allow us to continue to adequately recover export certification costs. We are making no changes based on this comment.

Comment: Services that APHIS provides under § 130.7 entail the same amount of work for in-transit cattle, horses, and swine. Therefore, APHIS should adjust the user fees to make them the same.

Response: The main difference in the calculations to determine the user fees for in-transit cattle, horses, and swine is the average number of animals (head) inspected per entry. The number of head per entry varies by type of animal and by port of entry. We calculated these user fees to reflect the average cost of service for each type of animal. We started with the total cost of providing the service and divided that by the average number of animals in a shipment as follows: 200 swine, 35 cattle, and 7 horses. Therefore, the calculations resulted in lower user fees for swine and higher user fees for horses. We believe that this was an equitable way to determine the appropriate user fees to pay for the services we provide for in-transit cattle, horses, and swine. Therefore, we are making no changes based on this comment.

Comment: The user fees in § 130.20 do not capture all of the services that APHIS provides for export health certificates that do not require verification of tests or vaccinations, but do require APHIS to verify statements made by an accredited veterinarian concerning the animals to be exported and/or the herd of origin. When APHIS must verify certification statements, then the user fee for the verification of tests or vaccinations should be used.

Response: We calculated these user fees to represent the average costs of providing the service. Therefore, some of the user fees may appear to be too high or too low based on an individual's experience, but in fact represent the average cost of providing the service. We did incorporate the time to review occasional certification statements into the calculation for the user fee for the endorsement of export health certificates that do not require tests or vaccinations. In the aggregate, the export certification user fees cover our costs and are not too low. The user fee increases in this document should allow us to continue to adequately recover export certification costs. Therefore, we are making no changes based on this comment.

Comment: The APHIS National Center for Import and Export (NCIE) personnel and the local APHIS area veterinarian in charge coordinate and facilitate the export of animals and animal products, including germ plasm. From early 1999 on, we have noticed an increase in job requirements and a gradual reduction in experienced personnel, resulting in a decrease in the ability of NCIE staff to respond to issues related to the exportation of germ plasm. In addition, our local area veterinarian in charge has a large geographic area of responsibility, and we often have to work around his schedule for our outbound shipments. APHIS helps us with serious issues regarding animal semen detained in customs in foreign countries and with health regulation questions. Timely information and quick action can make a difference in these areas. Delays in responses from APHIS can cause extra expenses and delays and increase the risk of losses. We respectfully request that the number of experienced staff be increased to a level such that staff can provide services needed by the artificial insemination industry to facilitate the trade of germ plasm in a timely fashion. We urge that the structure of the NCIE staff be given consideration to effectively support the trade of U.S. goods, including germ plasm.

Response: Some experienced personnel have left and new people are being hired and trained to provide the required import- and export-related user fee services for animals, animal products, and germ plasm. We provide a wide range of services and believe that structure of our staff is effective for providing those services. Our staff provides both user fee services and services covered by appropriations. If we were to consider restructuring to provide staff to focus solely on user fee services for the germ plasm industry, we would have to recalculate the germ plasm user fees, which could result in significant increases in those user fees. We are making no changes based on this comment.

Comment: We refer to the APHIS Retrieval System on the Internet for the latest health requirements for other countries. In late 1999, there was an error in the European Union requirements listed in the system, and the Japanese health requirements were not listed in the system. If user fees are increased, then we request better service.

Response: We provide information about other countries' requirements as a service for our customers. We attempt to keep the information in our APHIS Retrieval System current. We are dependent, however, on receiving timely information from other countries and organizations. We are making no changes based on this comment.

Comment: You should provide forms for export health certificates that can be used with a laser printer instead of the older forms using carbon paper.

Response: We use many different forms for our import- and export-related services for animals, animal products, and germ plasm. Some of these forms are available as computerized forms that can be used in laser printers. We are continuing the process of converting our forms to make them easier to use, including forms that can be used in laser printers.

Comment: Money from user fees should be used to streamline the certification and endorsement process through electronic transfer of papers, signatures, and record retrieval. An electronic streamlined process could reduce costs.

Response: We are currently developing a system that will provide a wide range of on-line services for the electronic submission, payment, review, and receipt of permits. We also intend to develop additional electronic systems for other services that we provide. APHIS services are continually adjusted to meet changing needs. We are constantly trying to improve our services and reduce costs.

Comment: APHIS should streamline the paperwork for pet birds by combining the current pet bird agreement and the avian release form into a single document for the inspection and release of pet birds.

Response: We are looking at streamlining the pet bird import process, including forms.

Comment: Please clarify § 130.20(b)(1), in the second sentence to say “tests or vaccinations” in place of “tests” to be consistent with the wording throughout the paragraph for these user fees.

Response: In 1996, we amended § 130.20(a) and (b)(1) to clarify that the user fees in § 130.20(b)(1) apply when APHIS personnel must verify tests or vaccinations (see 61 FR 20421-20437, Docket 92-174-2, May 7, 1996). At that time, we inadvertently failed to make the change suggested by the commenter. We are doing so in this final rule.

Comment: For the user fees in § 130.7(a), are registered horses considered “Registered animals, all types” or “Horses other than slaughter and in-transit”?

Response: Most horses are registered horses; therefore, our intention has always been that the category “Horses, other than slaughter and in-transit” was to include registered horses. To clarify this, we are changing the categories in the table for registered animals and horses to read “Registered animals (except horses)” and “Horses (including registered horses), other than slaughter and in-transit.”

Comment: Under § 130.7, there are categories for “Poultry imported for any purpose” and “Slaughter animals, all types,” but no category for slaughter poultry. The same amount of inspection and paperwork is required for slaughter cattle, swine, turkeys, or chickens. APHIS should consider adding a category in § 130.7 for in-transit poultry.

Response: The user fee for poultry imported for any purpose includes slaughter poultry and in-transit poultry. We charge the user fee for poultry imported for any purpose for in-transit poultry and slaughter poultry because the same amount of time is required to inspect the poultry. To clarify this, we are changing the category in the table for slaughter animals to read “Slaughter animals (except poultry).”

Comment: Under § 130.7(a), there are user fees for “Feeder animals (calves, cattle, sheep, and swine)” and “Horses, other than slaughter and in-transit,” but no category for “Feeder horses.” APHIS should establish a user fee category for “Feeder horses” for horses 9 months or younger.

Response: In our experience, the importation of horses strictly for feeding purposes is rare. Therefore, we are not publishing a user fee for feeder horses. If a large load of horses is imported strictly as feeder animals, then we would determine that at the port of entry and would, under § 130.30(a)(13), charge our hourly rate user fee for the services required for those horses. Therefore, we are making no changes based on this comment.

Our proposed rule was published on September 30, 1999. Between that date and the publication of this final rule, other final rules amending part 130 have been published. The changes made by those final rules are described below. This final rule reflects those changes.

On September 23, 1999, we published in the Federal Register (64 FR 51421-51422, Docket No. 98-006-2) a final rule that amended user fees for import- or entry-related services provided for animals presented at airports, ocean ports, and rail ports. The rule became effective on November 29, 1999. The rule replaced the flat rate user fee in § 130.7 with hourly rate user fees in § 130.9.

On December 3, 1999, we published in the Federal Register (64 FR 67699-67670, Docket No. 98-004-1) a final rule that made miscellaneous, nonsubstantive changes in part 130. The rule was effective as of November 29, 1999. The rule revised the section heading for § 130.2; clarified the ruminants category in § 130.6 to include breeder ruminants; moved user fees for pet birds out of § 130.8 and into § 130.10; revised the section heading for § 130.10; and revised several categories in § 130.20 for clarity by adding nonanimal products to the animal products category, moving the nonslaughter horses to Canada category from the table in paragraph (a) into the table in paragraph (b)(1), and revising the poultry and slaughter animals categories to clarify that slaughter poultry are included in the poultry category.

Also on December 3, 1999, we published in the Federal Register (64 FR 67697-67698, Docket No. 98-052-2) a final rule that amended user fees for the inspection for approval of biosecurity level three laboratories. The rule became effective on January 3, 2000. The rule replaced the hourly rates for this service in § 130.9 with a flat rate user fee in § 130.8 to cover all the costs of inspection related to approving a laboratory for handling one defined set of organisms or vectors.

On June 20, 2000, we published in the Federal Register (65 FR 38179-38182, Docket 98-045-2) a final rule that amended user fees for inspection and approval of various pet food facilities. The rule became effective July 20, 2000. The rule replaced the hourly rates for this service in § 130.21 with flat rate user fees in new § 130.11. The rule also moved all of the flat rate user fees contained in § 130.8 that are charged to import/export facilities or establishments into new § 130.11.

Sections §§ 130.2 and 130.3 contain fees for animals and birds quarantined in APHIS-owned or operated quarantine facilities, including APHIS Animal Import Centers. Users must make advance reservations for space at these facilities. To avoid unfairness, for all space reserved prior to the date this final rule is published, we will charge the user fee in effect at the time the reservation was made. For space reservations made after the date this final rule is published, we will charge the user fees adopted in this final rule.

Our proposal included user fees for fiscal years 2000 through 2004. Because this rule will not be effective until October 1, 2000, our final rule does not include fee increases for any portion of FY 2000.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have prepared a final regulatory flexibility analysis regarding the economic effects of this rule on small entities. Below is a summary of the economic analysis for the changes in APHIS user fees in this document. The discussion also serves as our cost-benefit analysis under Executive Order 12866. A copy of the full economic analysis, which includes comparisons of the change in collections for each user fee, is available for review at the location listed in the ADDRESSES section at the beginning of this document.

These user fees are authorized by § 2509(c)(1) of the Food, Agriculture, Conservation, and Trade Act of 1990, as amended (21 U.S.C. 136a). APHIS is authorized to establish and collect fees that will cover the cost of providing import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors.

Since FY 1992, APHIS has received no directly appropriated funds to provide import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors. Our ability to provide these services depends on user fees. We change our user fees through the standard rulemaking process of publishing the proposed changes for public comment in the Federal Register, considering the comments, publishing the final changes in the Federal Register, and making the new user fees effective 30 days after the final rule is published. This rulemaking process can be lengthy. As a result, our user fees have not always reflected the actual cost of providing services.

For our user fees to cover our costs so that we can continue to provide services and to inform our customers of user fees in time for advance planning, we are setting user fees for our services in advance for fiscal years 2001 through 2004. The user fees are based on our costs of providing import- and export-related services in FY 1999, including costs for rent, equipment replacement, billings, collections, and maintaining a reserve, plus adjustments for inflation, plus anticipated annual increases in the salaries of employees who provide the services. Because we had initially projected having the new fees in place sometime in FY 2000, our analysis covered fiscal years 2000 through 2004. We used estimated pay increases of 4.4 percent for FY 2000 and 3.9 percent for FY 2001 through FY 2004 published by the U.S. Treasury Department to calculate increases in the direct labor costs each year. We estimated inflation at 2.3 percent a year based on the Consumer Price Index (CPI). The estimated CPI is published in the Economic Assumptions table of the Budget for the U.S. Government each year.

In our proposed rule, we made certain collection and cost estimates based on the best data available at the time. Actual collections and costs varied somewhat from the estimates, but did not cause a significant difference in the scope of the program or the need to revise the fees as proposed. Our full analysis has been updated to reflect the new data.

The calculations underlying the proposed rule assumed an April 1, 2000, implementation date. Implementing the rule on July 1, 2000 will reduce the anticipated FY 2000 collections by $1,207,783. In FY 1999, the collections actually received totaled $13,038,181 instead of the $11,940,080 shown in the proposed rule as the estimated current annual collections. In the proposed rule, we based the estimated current annual collections and the projections for fiscal years 2000-2004 on FY 1998 collections and volumes, respectively. Total collections and volumes for FY 1999 were not available when the proposed rule was published. The following summary table shows annual expenses for providing import- and export-related services, current collections, increases in collections from the user fee changes, and projected reserve amounts.

User fee changes could affect some importers and exporters of live animals, animal products, birds, germ plasm, organisms, and vectors. Any of these importers or exporters whose annual sales total less than $5 million is a small entity according to the Small Business Administration (SBA). We do not have adequate information to determine the number of entities who import or export live animals and qualify as a small entity. Data from the 1995 Bureau of Census indicates that the majority of agricultural entities who deal in less valuable animals, such as feeding or slaughter animals, can be considered small. This may not be the case for entities dealing exclusively in more valuable animals. While there is a wide range in the size of entities who use our import- and export-related services, our experience shows that as many as 50 percent may be considered large.

The profit margins of some entities could decline as user fees for import- or export-related services are increased. However, the user fee increases are generally small in dollar value. Over the 5 years, more than 57 percent of the individual user fee increases are $1.00 or less, and more than 88 percent are less than $10.00. In addition, the user fees represent a small fraction of the value of the affected animals. Purchase and import costs for importing a breeding grade animal into the United States can range between $1500 and $5000 per head. Therefore, the user fee increases are not generally expected to reduce profits or impede imports or exports. Indeed, entities directly affected by this rule are not likely to bear the full burden of the user fee increases, as some of the cost increases are expected to be passed on to the purchasers of these imported or exported animals or animal products.

In our proposal, we solicited comments on the potential effects of the proposed action on small entities. In particular, we sought data and other information to help us better determine what effects, if any, this rule would have on the small entities mentioned above. We received no comments providing specific data in relation to the proposed rule's initial regulatory flexibility analysis, but commenters expressed concern that the proposal could negatively affect U.S. entities that export germ plasm by increasing their costs.

In our initial regulatory flexibility analysis, we agreed that the profit margins of some entities could decline as user fees for import- or export-related services increase under this rule. The commenters did not provide any data. Therefore, we are unable to determine with more specificity the effects of this rule on small or large entities that export germ plasm from the United States.

One alternative to this rule would be to make no changes to the current user fees. We do not consider making no changes to the current user fees a reasonable alternative because we would not recover the full cost of providing the import- and export-related services. Since 1992, Congress has not appropriated funds for these services; these services have been paid for through user fees charged to the customer or reimbursable agreements. Therefore, if we had chosen this alternative and made no changes to the current user fees, funds would not be available to continue to provide services at a level sufficient to meet customer demand.

Another alternative to this rule would be to either exempt small businesses from these user fees or establish a different user fee structure for small businesses. APHIS cannot exempt certain classes of users, such as small businesses, from the user fees, and cannot charge user fees that recover less than the full cost of providing the service. In addition, every business, including small businesses, using a government service needs to pay the cost of that service, rather than having other businesses pay a disproportionate share or passing those costs on to the general public, who are not the primary beneficiary of the service. Therefore, we do not consider exempting small businesses from these user fees or establishing a different user fee structure for small businesses as viable options.

Another alternative to the user fee changes in this rule would be to calculate the increases for the 5-year period and then spread the changes evenly in annual increments. The largest change from the current user fees to the FY 2000 user fees comes from the additional administrative support cost components: Rent, billing costs and collections expenses, and equipment capitalization. APHIS is already incurring these costs; therefore we need to recover these costs through user fees. If we had proposed these increases phased in over the 5-year period, it would benefit users in FY 2000 because they would not pay a large increase in the first year. However, most of these user fees have not been changed since FY 1996 and the current user fees no longer reflect the cost of providing import- and export-related services. Therefore, if we implemented this alternative, the user fees would still not accurately reflect the costs in FY 2000, and we would not recover the costs of providing import- or export-related services, so this option is not viable. We are offering a multi-year plan so that businesses will know the annual changes in advance and can incorporate them into their budgetary plans. The alternative would be to continue as we have with occasional large increases instead of the initial increase to bring the user fees up to the cost of providing services and implementing annual changes as we have in this document.

The benefit of user fees is the shift in the payment of services from taxpayers as a whole to those persons who are receiving the government services. While taxes may not change by the same amount as the change in user fee collections, there is a related shift in the appropriations of taxes to government programs, which allows those tax dollars to be applied to other programs that benefit the public in general. Therefore, there could be a relative savings to taxpayers as a result of the changes in user fees.

The administrative cost involved in obtaining these savings will be minimal. APHIS already has a user fee program and a mechanism for collecting user fees in place. This rule will update existing user fees in the system. Therefore, increases in administrative costs will be small. Because the savings are sufficiently large, and the administrative costs will be small, it is likely that the net gain in reducing the burden on taxpayers as a whole will outweigh the cost of administering the revisions of the user fees.

This rule contains no new information collection or recordkeeping requirements.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The information collection requirements in 9 CFR part 130 have been approved by the Office of Management and Budget under OMB control number 0579-0094.

(b) [Reserved]

(b) * * *

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-19-22, which applies to ECD Model BO-105A, BO-105C, BO-105 C-2, BO-105 CB-2, BO-105 CB-4, BO-105S, BO-105 CS-2, BO-105 CBS-2, BO-105 CBS-4, and BO-105LS A-1 helicopters, was published in the Federal Register on April 24, 2000 (65 FR 21673). That action proposed to require establishing a life limit for the TT straps of 120 months or 40,000 flights, whichever occurs first.

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

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

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter France Model EC120B helicopters. The DGAC advises that the cabin sliding door must be adjusted, if necessary, to prevent in-flight loss of the cabin sliding door.

Eurocopter France has issued Service Telex No. 05-005, dated June 30, 2000, which specifies adjusting any cabin sliding door if a roller is not completely inside its rail with a minimum clearance of 3 mm. Eurocopter France received a report of an in-flight loss of the cabin sliding door. An investigation shows that the loss of the door was due to the forward upper roller being out of its guide rail. The door edge thus exposed to the slipstream caused the forward lower roller train to be driven out of the guide rail due to the aerodynamic loads. The door aft hinges failed, and the door departed from the aircraft. The DGAC classified this service telex as mandatory and issued AD T2000-285-005(A), dated June 30, 2000, to ensure the continued airworthiness of these helicopters in France.

This helicopter model is manufactured in France and is type certificated for operation in the United States under the provisions of 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.

We have identified an unsafe condition that is likely to exist or develop on other Eurocopter France Model EC120B helicopters of the same type design registered in the United States. This AD is being issued to prevent in-flight loss of a cabin sliding door, impact with the horizontal stabilizer, main rotor, or fenestron tail rotor, and subsequent loss of control of the helicopter. This AD requires adjusting the clearance of any cabin sliding door to a minimum of 3 mm from the aft end of the rail. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity and controllability of the helicopter. Therefore, adjusting the clearance of the cabin sliding door to a minimum of 3 mm from the aft end of the rail is required before further flight with the door in the open position and this AD must be issued immediately.

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

The FAA estimates that 24 helicopters will be affected by this AD, that it will take approximately 0.25 work hours to adjust the cabin sliding door, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $360.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-SW-33-AD.” The postcard will be date stamped and returned to the commenter.

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

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

On Friday, June 16, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Dickinson, ND (65 FR 37725). The proposal was to modify controlled airspace extending upward from the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace areas designated as surface areas are published in paragraph 6002, and Class E airspace areas extending upward from 700 feet or more above the surface are published in paragraph 6005, of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, 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 modifies Class E airspace at Dickinson, ND, to accommodate aircraft executing instrument flight procedures into and out Dickinson Municipal Airport. The area will be depicted on appropriate aeronautical charts.

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 will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In the Federal Register of May 14, 1999 (64 FR 26282), FDA published a direct final rule to amend the biologics regulations in part 640 (21 CFR part 640) by removing, revising, or updating specific regulations applicable to blood derivative products to be more consistent with current practices and to remove unnecessary or outdated requirements. FDA issued these amendments directly as a final rule because the agency believed they were noncontroversial and that there was little likelihood that there would be comments opposing the rule. In the Federal Register of May 14, 1999 (64 FR 26344), FDA published a companion proposed rule under FDA's usual procedures for notice and comment in the event the agency received any significant adverse comments to the direct final rule. FDA received three significant adverse comments during the comment period, and the agency has considered these comments in developing the final rule.

In the Federal Register of March 14, 2000 (65 FR 13678), FDA published a direct final rule with a confirmation in part and technical amendment. The document confirmed those provisions for which there were no adverse comments. This final rulemaking responds to those proposed provisions for which there were significant adverse comments.

The proposed changes to § 640.81(e) were: (1) The insertion of the word “continuously,” to clarify that the heating process shall be continuous for the time and at the temperature specified in the regulations and (2) the removal of an extraneous degree sign.

One comment did not object to the proposed changes to § 640.81(e), but it recommended deletion of the sentence that currently precedes the sentence for which the changes are proposed. That sentence reads: “Heating of the final containers of Albumin (Human) shall begin within 24 hours after completion of filling.” The comment also stated that the proposed rule should be broadened to allow for heat treatment to occur in bulk during the manufacturing process.

FDA disagrees with the comment. Even though the comment did not address the proposed rule, but rather the regulation as it currently exists, the agency has considered the comment and the arguments listed in support of the recommended deletion and/or broadening. The comment listed several potential advantages of heating in bulk over heating in the final containers. These included better control and monitoring, obviation of the need for a water bath and the attendant potential microbial contamination of the product, and diminished leaching of contaminants from the containers. The comment noted that heating in bulk would allow the product to be filled in a post-viral-inactivation filling suite.

Despite these theoretical advantages, the agency does not find that they provide sufficient assurance of safety equal to or greater than that provided by the current process to warrant deleting this portion of the regulation. Furthermore, the agency is not aware that any of the disadvantages of the current process implied by the comment cannot be overcome by appropriate process validation and adherence to current good manufacturing practice.

Nothing in the current regulation or the proposed rule precludes heat treatment in bulk during the manufacturing process for Albumin (Human), provided that it is conducted according to current good manufacturing practice and described in an approved Biologics License Application (BLA). An applicant who wishes to include such a step in the manufacture of Albumin (Human) should describe it in a BLA or Biologics License Supplement that addresses such matters as validation of the process and demonstration that the treatment does not affect adversely the characteristics of the product, including its purity, safety, and stability.

However, the agency has concluded that heat treatment in bulk, even for 10 to 11 hours at 60±0.5 °C, does not permit the manufacturer to forgo heating Albumin (Human) in the final containers, as prescribed in § 640.81(e). This requirement is intended to minimize the occurrence of viral transmission by albumin-containing products (Ref. 1).

The proposed changes to § 640.81(f) would clarify the acceptable amounts of stabilizers that must be present in Albumin (Human) and Plasma Protein Fraction (Human) to reflect the amounts of those stabilizers that are currently used in these products.

One comment objected to the proposed quantity of sodium caprylate per gram (/g) of protein and recommended that the range be increased to allow higher quantities of caprylate/g of protein or, alternatively, that the quantity of sodium caprylate not be specified in the regulation.

The rationale for this recommendation included: (1) Caprylate is a more effective stabilizer than is acetyltryptophanate, which is currently used as a stabilizer in conjunction with caprylate; (2) the denaturation temperature of albumin is increased as the quantity of caprylate/g of protein is increased; and (3) the additional quantity of caprylate infused will not be expected to have any adverse effect.

FDA does not agree with the comment. The agency agrees that caprylate is a more effective stabilizer of albumin than is acetyltryptophanate. The observation that 0.08 millimole sodium caprylate/g of protein stabilizes albumin nearly as effectively as 0.08 millimole sodium acetyltryptophanate plus 0.08 millimole sodium caprylate/g of protein (Refs. 2 and 3) was one of the reasons underlying the proposed rule. The agency also agrees that increasing the quantity of caprylate/g of protein increases the denaturation temperature of albumin. For the heat treatment required by § 640.81 during the processing of albumin, however, the important factor is the effectiveness of stabilization at 60 °C. Once the quantity of stabilizer is sufficient to assure that the temperature at which denaturation is initiated is significantly above 60 °C, further increase in the quantity of stabilizer would not be expected to enhance the stability of albumin at this temperature (Ref. 3). This expectation has been confirmed in practice. When albumin was heated for 10 hours at 60 °C, increasing the ratio of caprylate to protein resulted in progressively better stabilization up to a ratio of 0.08 millimole sodium caprylate/g of protein; above that, little or no further stabilization occurred (Ref. 3). Furthermore, when sodium caprylate was present at a ratio of 0.08 millimole/g of protein, albumin remained as stable during continued heating (up to 24 hours) at 60 °C as it was after 10 hours at this temperature (Ref. 3).

Numerous biological effects of caprylate have been reported. Even a nonexhaustive listing reveals a broad array, including: (1) Hypoglycemia (Refs. 4 to 6); (2) hyperventilation (Refs. 7 and 8); (3) narcotic action in various animal species (Refs. 6, 9, and 10); (4) increased oxygen consumption and decreased clearance of long-chain fatty acids by the liver (Refs. 11 and 12); (5) vasodilation (Ref. 13); (6) decreased muscle contractility (Refs. 14 to 6); (7) altered epithelial and membrane permeability (Refs. 17 and 18), including alteration of the blood-brain barrier (Refs. 19 and 20); (8) inhibition of platelet reactivity (Refs. 21 and 22); (9) increased release of insulin and enzymes from pancreatic cells (Refs. 23 to 26); (10) altered carbohydrate metabolism (Refs. 5, 15, and 27 to 30), including glucose production (Refs. 4, and 31 to 33); (11) increased catabolism of muscle proteins (Ref. 34), decreased incorporation of amino acids into protein (Ref. 35), and alterations in amino acid metabolism (Refs. 36 and 37); (12) decreased ammonia production and metabolism (Refs. 31 and 38); and (13) depressed synthesis of DNA (Deoxyribonucleic acid) and RNA (ribonucleic acid) (Refs. 39 to 41).

In view of this broad range of demonstrated effects, it is difficult to predict the outcome of increased caprylate infusion in different patients and different clinical settings. For this reason, the agency believes that the ratio of caprylate to protein should not be increased above that necessary to stabilize albumin.

Many factors contribute to the stability of albumin during heating. These include not only the stabilizers noted here but also the pH (Ref. 42) and the chloride content of the solution (Ref. 3). Moreover, the contributions of these factors to the stability of albumin appear to be additive (Ref. 3). Therefore, conditions can be chosen to maximize the stability of albumin without increasing the quantity of caprylate above that specified in the proposed rule.

The proposed change to § 640.102(e) would delete “30 to” in § 640.102(e).

One comment on proposed § 640.102(e) raised no objection, but it objected to the wording of other parts of the paragraph. The comment recommended that the first sentence be amended with definitions to provide increased clarity. It stated that the second sentence, as worded in both the current regulation and the proposed rule, seems not to allow for heating of the product at elevated temperature for the purpose of viral inactivation; and it recommended that it be amended to incorporate this possibility.

The agency agrees that the parts of the regulation noted in the comment, as well as others that were not included, could be clarified and improved. The agency believes that making such changes should be done as part of an overall revision of the regulation and is beyond the scope of this rulemaking. With regard to the comment about the second sentence, if an applicant believes that heating at elevated temperature would improve the safety of Immune Globulin (Human) without compromising its other characteristics, such as purity and stability, the applicant should describe the process in a BLA or Biologics License Supplement and submit it to the agency as a request for an alternative procedure under § 640.120.

FDA has considered all comments in response to the proposed rule and has determined that proposed § 640.81(e) and (f) and § 640.102(e) should be issued as a final rule.

FDA has examined the impacts of the final rule under Executive Order 12866 the Regulatory Flexibility Act (5 U.S.C. 601-612 (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive Order. In addition, the final rule is not a significant regulatory action as defined by the Executive Order and therefore is not subject to review under the Executive Order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small business entities. Because the final rule amendments have no compliance costs and do not result in any new requirements, the agency certifies that the final rule will not have a significant negative economic impact on a substantial number of small entities. Therefore, under the Regulatory Flexibility Act, no further analysis is required.

The Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) requires that agencies prepare an assessment of anticipated costs and benefits before proposing any rule that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Because this rule does not result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, FDA concluded that the proposed regulation is consistent with the principles of the Unfunded Mandates Reform Act without the need for further analysis.

The agency has determined under 21 CFR 25.31(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

The following references have been placed on display in the Dockets Management Branch (address above) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

Pursuant to Treasury Order 120-01 (formerly 221), dated June 6, 1972, the Secretary of the Treasury delegated to the Director of the Bureau of Alcohol, Tobacco and Firearms (ATF), the authority to enforce, among other laws, the provisions of the Federal Alcohol Administration (FAA) Act. The Director has subsequently redelegated certain of these authorities to appropriate subordinate officers by way of various means, including by regulation, ATF delegation orders, regional directives, or similar delegation documents. As a result, to ascertain what particular officer is authorized to perform a particular function under the FAA Act, each of these various delegation instruments must be consulted. Similarly, each time a delegation of authority is revoked or redelegated, each of the delegation documents must be reviewed and amended as necessary.

ATF has determined that this multiplicity of delegation instruments complicates and hinders the task of determining which ATF officer is authorized to perform a particular function. ATF also believes these multiple delegation instruments exacerbate the administrative burden associated with maintaining up-to-date delegations, resulting in an undue delay in reflecting current authorities.

Accordingly, this final rule rescinds all authorities of the Director in parts 6, 8, 10 and 11 that were previously delegated and places those authorities with the “appropriate ATF officer.” Most of the authorities of the Director that were not previously delegated are also placed with the “appropriate ATF officer.” Along with this final rule, ATF is publishing ATF Order 1130.7, Delegation Order—Delegation of the Director's Authorities in Parts 6, 8, 10 and 11, which delegates certain of these authorities to the appropriate organizational level. The effect of these changes is to consolidate all delegations of authority in parts 6, 8, 10 and 11 into one delegation instrument. This action both simplifies the process for determining what ATF officer is authorized to perform a particular function and facilitates the updating of delegations in the future. As a result, delegations of authority will be reflected in a more timely and user-friendly manner.

In addition, this final rule also amends parts 6, 8, 10 and 11 to provide that the submission of documents other than ATF forms (such as letterhead applications, notices and reports) must be filed with the “appropriate ATF officer” identified in ATF Order 1130.7. These changes will facilitate the identification of the officer with whom forms and other required submissions are filed.

This final rule also makes various technical amendments to 27 CFR parts 6, 8, 10 and 11. New sections are added in each part to recognize the authority of the Director to delegate regulatory authorities and to identify ATF Order 1130.7 as the instrument reflecting such delegations.

ATF has begun to make similar changes in delegations to other parts of Title 27 of the Code of Federal Regulations through separate rulemakings. By amending the regulations part by part, rather than in one large rulemaking document and ATF Order, ATF minimizes the time expended in notifying interested parties of current delegations of authority.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

Because no notice of proposed rulemaking is required for this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

It has been determined that this rule is not a significant regulatory action because it will not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

Because this final rule merely makes technical amendments and conforming changes to improve the clarity of the regulations, it is unnecessary to issue this final rule with notice and public procedure under 5 U.S.C. 553(b). Similarly it is unnecessary to subject this final rule to the effective date limitation of 5 U.S.C. 553(d).

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

A new State Route 107 fixed bridge across the Red River, mile 59.9, at Moncla, Louisiana, was opened to traffic in March of 2000. The old State Route 107 vertical lift bridge across the Red River, mile 59.5, was removed. The elimination of this drawbridge necessitates the removal of the drawbridge operation regulation that pertained to this draw. This rule removes the regulation for this bridge in § 117.491(a).

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forgo notice and comment for this rulemaking because removing the bridge makes the need for the regulation unnecessary. The Coast Guard has also determined that good cause exists for the rule to become effective upon publication in the Federal Register as the bridge was removed in July, 2000.

This final rule is not a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget 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). The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Coast Guard considers whether this final rule will have a significant economic impact on a substantial number of small entities. “Small entities” include (1) small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and (2) governmental jurisdictions with populations of less than 50,000.

This rule will have no impact on either vehicular or navigational traffic because the regulation being removed applies to a bridge that has been removed. Because it will have no impact, the Coast Guard certifies under 5 U.S.C. 605(b) that it will not have any economic impact on a substantial number of small entities.

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

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

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

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

We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This final 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 final rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this final rule is categorically excluded from further environmental documentation. This final rule will change an existing special drawbridge operating regulation promulgated by a Coast Guard Bridge Administration Program action. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

Bridges.

A new State Route 22 fixed bridge across the Tickfaw River, mile 7.2, at Killian, Louisiana, was opened to traffic in March of 2000. The old State Route 22 swing bridge across the Tickfaw River, mile 7.2, was removed. The elimination of this drawbridge necessitates the removal of the drawbridge operation regulation that pertained to this draw. This rule removes the regulation for this bridge in § 117.506.

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forego notice and comment for this rulemaking because removing the bridge makes the need for the regulation unnecessary. The Coast Guard has also determined that good cause exists for the rule to become effective upon publication in the Federal Register as the bridge was removed in April, 2000.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Coast Guard considers whether this final rule will have a significant economic impact on a substantial number of small entities. “Small entities” include (1) small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and (2) governmental jurisdictions with populations of less than 50,000.

This rule will have no impact on either vehicular or navigational traffic because the regulation being removed applies to a bridge that has been removed. Because it will have no impact, the Coast Guard certifies under 5 U.S.C. 605(b) that it will not have any economic impact on a substantial number of small entities.

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

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

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

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

We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This final 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 final rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.lC, this final rule is categorically excluded from further environmental documentation. This final rule will change an existing special drawbridge operating regulation promulgated by a Coast Guard Bridge Administration Program action. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

Bridges.

On April 19, 1999, the Postal Service announced in the Federal Register (62 FR 19039-19042) the introduction of Priority Mail Global Guaranteed on an interim basis.

The Postal Service, through an alliance with DHL Worldwide Express Inc., is offering an enhanced expedited service, Priority Mail Global Guaranteed, from selected locations in the United States to most countries. This service offers day-certain delivery with postage refund guarantee and document reconstruction coverage of $100 for allowable contents.

On November 4, 1999, the Postal Service announced in the Federal Register (64 FR 60106-60109) an amendment to the interim rule to add more U.S. acceptance locations and to extend the service to more destination countries. On May 26, 2000, the Postal Service again amended the interim rule in the Federal Register (65 FR 34096-34101) to change rates for Priority Mail Global Guaranteed service and to provide service to most countries. Public comments were requested by June 26, 2000, and by that date one comment was received. The comment related to the way in which the Postal Service categorized the U.S. acceptance offices and how the acceptance offices were selected.

The acceptance offices are selected on their ability to meet the stringent service standards for this service based on local considerations such as timely transportation, mail processing capabilities, and access to national transportation. Most decisions are made by local postal officials and are based on local conditions and the ability to have reasonable acceptance times. The Postal Service will continue to evaluate the acceptance network and expand it when service can be reasonably provided.

The Postal Service is amending the interim rule on Priority Mail Global Guaranteed service to change rates for this service, add additional acceptance offices, introduce optional document reconstruction insurance coverage up to $2,499, and provide service to China.

The rates have been refined to have separate rates for all rates groups. In addition, a number of destinations are assigned to different rates groups. The redesigned rate schedule better reflects the cost of providing the service.

Service is also being added to China. It should be noted that due to circumstances beyond the control of the Postal Service, service to Brazil has been temporarily suspended. Service will be available to all country destinations listed in the International Mail Manual (IMM) except Afghanistan, Ascension, Brazil, Iraq, Japan, Democratic People's Republic of Korea (North), Libya, Pitcairn Island, Saint Helena, Sudan, and Tristan de Cunha.

The applicable rates and the destination countries that are associated with each rate group are as follows:

Priority Mail Global Guaranteed service is expanded to originate from all post offices in the following 3-digit ZIP Code areas.

Currently, Priority Mail Global Guaranteed service includes document reconstruction insurance up to $100 per shipment at no additional charge. The Postal Service is introducing optional document reconstruction insurance up to a maximum of $2,499. The fee for this coverage is $0.70 per $100 of additional insurance over the initial reconstruction insurance coverage for $100 that is provided. Optional insurance may be purchased only for the declared value of the shipment or a lesser amount as limited by the country of destination, content, or value.

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 amendment to the interim rule at the above address.

The Postal Service is amending International Mail Manual chapter 2, Conditions for Mailing, which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1.

A transmittal letter changing the relevant pages in the International Mail Manual will be published and automatically transmitted to all subscribers. Notice of issuance of the transmittal will be published in the Federal Register as provided by 39 CFR 20.3.

Today's action finalizes EPA's approval of the Atlantic Steel TCM into the Georgia SIP. A detailed description of the Atlantic Steel TCM may be found in the Notice of Proposed Rulemaking for today's action, which was published in the Federal Register on April 10, 2000 (65 FR 18947). The proposal's comment period ended May 10, 2000. In addition, EPA and the Georgia Department of Transportation (GDOT) held a public information meeting (PIM) on April 18, 2000, to provide updates on the proposed 17th Street bridge and Atlantic Steel redevelopment projects, and to provide an opportunity for public comment. EPA received one comment letter during the comment period from the Ansley Park Civic Association (APCA) dated May 10, 2000, and one comment letter after the comment period closed from the Georgia Sierra Club Challenge to Sprawl Campaign dated May 16, 2000. EPA also received several individual comments at the PIM regarding the proposed TCM. Copies of the comments in their entirety may be obtained from the docket for this rule (see ADDRESSES).

The City of Atlanta (sponsor of the TCM), Jacoby Atlantic Redevelopment (hereafter referred to as “the developer”), and EPA collaborated to develop minor revisions to the TCM. The City submitted the revisions to the Georgia Environmental Protection Division (EPD) on July 27, 2000, and EPD submitted the SIP revisions to EPA on August 1, 2000. EPA believes that the revisions help address concerns raised by commenters and strengthens the potential for superior environmental performance of the TCM. The revisions are described in detail in EPA's response to comments below.

1. Comment: “Appropriate measures should be taken to protect surrounding neighborhoods from adverse traffic and air quality impacts generated by the Atlantic Steel development.”

Response: EPA, in cooperation with the Federal Highway Administration and the Federal Transit Administration, has completed an Environmental Assessment (EA) of the Atlantic Steel redevelopment and 17th Street bridge and associated interchange and roadway modifications. The EA has been prepared in accordance with the National Environmental Policy Act of 1969 (NEPA) as amended; EPA's “Policy and Procedures for Voluntary Preparation of NEPA Documents” (63 FR 58045), generally following the procedures set out at 40 Code of Federal Regulations (CFR) Part 6, Subparts A through D; and the United States Department of Transportation's “Environmental Impact and Related Procedures” (23 CFR 771). The EA provides a summary of planning efforts associated with the development of concept alternatives, traffic studies, preliminary engineering analysis, and environmental impact assessments, all of which have been completed with opportunities for public comment and agency coordination, as part of the NEPA process as well as EPA's Project XL. The EA describes the potential impacts to existing environmental conditions in the study area, which includes the surrounding neighborhoods, as a result of the proposed 17th Street extension and Atlantic Steel redevelopment. The description of impacts focuses on the resources most affected by the proposed action, including localized traffic and air quality impacts, and mitigative measures are proposed where appropriate.

Regarding traffic impacts on surrounding neighborhoods generated by the Atlantic Steel redevelopment, Atlantic Steel zoning condition #4 requires the developer to work with the City of Atlanta and Home Park to limit cut-through traffic on residential streets perpendicular to and south of 16th Street by means of cul-de-sacs, speed humps, gates, control arms, and other traffic-calming devices, and to work with the City of Atlanta and Loring Heights neighborhood to limit cut-through traffic on Bishop Street. In addition, EPA Region 4 has drafted and is coordinating a Memorandum of Understanding (MOU) between EPA, the City of Atlanta, GDOT, the Georgia Regional Transportation Authority, and the developer which seeks the concurrence of the Midtown Alliance, APCA, the Home Park Community Improvement Association, and the Loring Heights Neighborhood Association to establish a community-based planning process to collect specific data on future trips associated with the redevelopment of the Atlantic Steel site and other projects in Midtown Atlanta in order to study the magnitude and cumulative effects of traffic in the neighborhoods and develop and implement means of minimizing these impacts.

Regarding air quality impacts on surrounding neighborhoods generated by the Atlantic Steel redevelopment, EPA performed a carbon monoxide (CO) hotspot analysis, which is included in the docket for this rulemaking, and concluded that the Atlantic Steel redevelopment and associated roadway improvements would be extremely unlikely to create a localized violation of the National Ambient Air Quality Standards (NAAQS) for CO in the foreseeable future. In addition, EPA performed a regional emissions analysis, which is included in the docket for this rulemaking, and concluded that the Atlantic Steel redevelopment would produce fewer transportation-related emissions of volatile organic compounds and oxides of nitrogen, precursors to ground-level ozone formation, than a comparable amount of development built at other likely locations in the Atlanta region.

In addition, the Atlantic Steel TCM contains four site design criteria and four performance targets which will collectively help ensure both that the redevelopment is designed and built with elements that encourage alternatives to single-occupancy automobile trips, and also that the project will perform up to its potential to lower vehicle-miles traveled and concomitant emissions. EPA believes that the EA, zoning conditions, MOU, localized and regional emissions studies, and site design criteria and performance targets identify and establish appropriate measures to protect surrounding neighborhoods from adverse traffic and air quality impacts generated by the Atlantic Steel redevelopment.

2. Comment: “The TCM Document freely acknowledges that this project could not go forward under existing statutory and regulatory requirements. Only because EPA has adopted Project XL which appears to be an exception to the legal regime within which EPA must operate is the project even being considered.”

Response: EPA disagrees with this comment. There is no statutory or regulatory requirement that would prevent the Atlantic Steel project from being considered a TCM in the absence of Project XL. It is clear that by creating an illustrative list of potential TCMs in the Clean Air Act (CAA) that Congress intended that EPA should have the discretion to identify other types of TCMs than those listed in 42 United States Code (U.S.C.) Sections 7408(f)(1)(A)(i)-(xvi). In fact, as EPA pointed out in the proposed rulemaking, there are many individual components of this project that could be considered TCMs as defined by the CAA and EPA's Transportation Conformity Rule (40 CFR 93.101), including the bike and transit lanes on the proposed 17th Street bridge. The Atlantic Steel project is the first of its kind to combine these components, including site design and location, together as a TCM. In addition, EPA has traditionally relied on a “build/no-build” analysis to estimate the emissions benefits of proposed TCMs, i.e., the emission reduction benefits would be estimated by comparing projected transportation-related emissions if the project is built to those if the project isn't built. However, EPA does not believe the traditional build/no-build analysis is appropriate for the Atlantic Steel TCM because the traditional no-build analysis would not take into account the probability and location of development that will occur in the absence of the Atlantic Steel redevelopment.

Therefore, EPA is using the flexibility of Project XL for two reasons: (1) to view the redevelopment and associated transportation elements, including the bridge, together as a TCM; and (2) to estimate the air quality benefit of the Atlantic Steel redevelopment relative to an equivalent amount of development at other likely sites in the region. EPA believes that this emissions analysis is appropriate for the Atlantic Steel project because EPA expects that the Atlanta region will continue to grow, and that at least part of the development represented by the Atlantic Steel project would be built at other potential sites in the region, if the Atlantic Steel TCM were not approved.

EPA would like to clarify that it is only the 17th Street bridge and associated interchange modifications that could probably not proceed under existing Federal statutory and regulatory requirements during a transportation conformity lapse. Certainly, redevelopment of the Atlantic Steel site could proceed without Federal action. The City's zoning conditions require construction of the 17th Street bridge, and it is the 17th Street bridge and interchange modifications that require Federal action. However, without the bridge, the land would likely be re-zoned and redeveloped with a different design and mix of uses than what is currently proposed. The revised design would likely be much less transit and pedestrian-oriented and would not benefit from a direct connection to the Metropolitan Atlanta Rapid Transit Authority (MARTA) Arts Center station afforded by the bridge. EPA therefore believes that, in the absence of the 17th Street bridge with the direct transit connection to the MARTA Arts Center station, the potential air quality benefits of the resulting redevelopment would be less than the current proposal.

In addition, if the Atlantic Steel redevelopment and 17th Street bridge are not approved together as a TCM, the 17th Street bridge could still be approved separately after the transportation conformity lapse in Atlanta has been lifted, and many of the features of the redevelopment as described under Project XL would likely be lost. In an April 24, 2000, letter from the City of Atlanta to EPA, Commissioner Michael A. Dobbins wrote that in that case “[the City] would expect the site to be developed * * * in pieces where it would be improbable that an overarching vision of a cohesive ‘village’ or ‘town’ would emerge. Transit linkages, and thus usage, would not be likely nor even to a large extent, possible. * * * In addition, other internal connections, like pedestrian continuity or provision of continuous streetscapes and usable green space would be problematic.” Furthermore, “components would be built as a series of single-use developments rather than comprehensively. As a consequence, the opportunities for intermixing these uses would be limited. Adjacent land uses probably would be less compatible and not as mutually supportive. Parking would be built on a per site needs basis with less opportunity for shared or coordinated parking strategies, resulting in more parking spaces overall.”

EPA, through Project XL, worked with the developer and a well-known urban design planner to improve the initial site design. Without Project XL, and ultimately the TCM, EPA and other stakeholders would not have had as great an impact on the pedestrian/transit orientation of the project. The Project XL process provided many opportunities for community input. Stakeholder involvement in the regulatory process is typically much more limited than that provided through the Project XL and TCM processes.

In this project, the use of flexibility to allow a major downtown redevelopment with associated transportation improvements to proceed during a conformity lapse raises complex legal, policy, and scientific issues and uncertainties. These issues and uncertainties will require extensive post-implementation analysis before EPA can determine whether such flexibility can or should be offered to other entities in the future. Therefore, as with all XL projects, the flexibility granted in connection with the approval of this SIP revision, in and of itself, establishes no precedent with regard to other redevelopment projects.

3. Comment: “We believe that because the Atlantic Steel redevelopment and related roadway construction (the ‘Atlantic Steel Project’) admittedly is deficient under EPA's existing requirements for designation as a TCM, the Atlantic Steel Project must be subjected to a greater level of scrutiny to determine whether it is an appropriate exercise of EPA authority.”

Response: In the proposed rulemaking, EPA identified six criteria established by EPA policy (“Transportation Control Measures: State Implementation Plan Guidance,” U.S. EPA Office of Air Quality Planning and Standards, September 1990) that a proposed TCM must satisfy before it may be considered for inclusion in the SIP. The proposed rulemaking also contained detailed explanations of how the proposed Atlantic Steel TCM satisfied EPA's criteria. EPA has no statutory or regulatory responsibility to subject the Atlantic Steel TCM to a greater level of scrutiny than any other TCM. Nevertheless, it is the opinion of EPA that the Atlantic Steel TCM has indeed been subject to intense scrutiny, particularly in terms of satisfying EPA's six TCM criteria.

4. Comment: “The TCM Document does not cite any legal authority permitting EPA to adopt Project XL.”

Response: EPA is approving the Atlantic Steel TCM into the Georgia SIP under the authority of sections 108(f) and 110 of the CAA. In Project XL, the EPA and state regulators utilize tools under existing statutory authority to provide appropriate flexibility from otherwise applicable regulatory requirements. As explained in the proposed rulemaking, EPA is approving the redevelopment as a TCM because its location, transit linkage, site design, and other transportation elements together comprise a measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. In addition, the redevelopment includes specific elements listed in section 108(f). Under section 110 of the CAA, EPA approves measures into the SIP that contribute to attainment of the NAAQS.

5. Comment: “To approve the Atlantic Steel TCM, EPA must at a minimum ensure that it does not produce local pollution problems while reducing regional emissions, including carbon monoxide (CO) hot spots.”

Response: EPA voluntarily undertook a CO hotspot analysis for the Atlantic Steel TCM and concluded that it would be extremely unlikely to create a violation of the NAAQS for CO in the foreseeable future. This type of analysis is required by EPA's Transportation Conformity Rule (40 CFR 93 Subpart A) only in CO and PM10 (particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers) nonattainment and maintenance areas (40 CFR 93.116). EPA has designated Atlanta attainment under the NAAQS for CO and PM10.

6. Comment: “The CO local hotspot analysis is flawed and must be recomputed using accurate forecasts of travel demand behavior in the Midtown area. Consultants hired by EPA performed a CO impact assessment of the Atlantic Steel Project and concluded that ‘the project is extremely unlikely to create a violation of ambient air quality standards for carbon monoxide in the foreseeable future.’ The CO Report indicates that it used data input files from a variety of sources, including the Atlanta Regional Commission's (ARC) TRANPLAN regional travel demand model. The ARC TRANPLAN model, however, projects that from 2000-10 Midtown will grow by 4,528 jobs and 193 residents. These projections are fundamentally unsound. There is in excess of 4 million square feet of office space and 1,398 residential units currently under construction with another 892,700 square feet of office space and 1,243 residential units proposed for the Midtown area. When completed, this space could accommodate more than 17,000 office employees and 1,700 residents [assuming one employee per 300 square foot of office space and 1.5 residents per residential unit]. By materially underestimating population and job growth in the Midtown area, TRANPLAN necessarily materially underestimates key information including, traffic volume and traffic congestion, required for the calculation of local CO emissions. The CO hotspot analysis is therefore fatally flawed and cannot support the conclusion that the Atlantic Steel Project will not produce any CO hotspots. Further analysis of the CO impacts of the Atlantic Steel Project is required before approval of the Atlantic Steel TCM may be granted.”

Response: The traffic volume projections for the year 2025 used in the Atlantic Steel CO hotspot analysis consisted of two parts: (1) “Background” traffic that would exist regardless of whether Atlantic Steel is redeveloped, and (2) additional traffic generated by the redevelopment. The commenter is concerned that the background traffic volumes for Midtown were underestimated due to perceived deficiencies in ARC's regional travel demand model. However, ARC's travel demand model was not used to generate the background or the redevelopment-related traffic volumes in the CO hotspot analysis. ARC's travel model was used only to predict the origin and destinations and distribution of trips in the study area, not the total number of trips. The 2025 background traffic volumes were generated by growing 1998 observed surface street traffic volumes by 2 percent per year and observed freeway traffic volumes by 1.5 percent per year. This is equivalent to a 71 percent increase in surface street traffic volumes and a 49 percent increase in freeway traffic volumes in Midtown between 1998 and 2025. The 2025 Atlantic Steel-related traffic volumes were based on Institute of Transportation Engineers (ITE) trip generation equations applied to the Atlantic Steel redevelopment build-out projections, reduced by 10 percent to account for internal capture and 15 percent for transit.

In addition, the CO hotspot analysis was conservative in that it considered conditions most likely to produce CO hotspots in terms of meteorology, traffic congestion, and receptor location. Furthermore, the CO hotspot analysis was completed before EPA finalized its Tier 2 tailpipe emissions and gasoline sulfur standards, which should reduce future motor vehicle CO emission rates below those assumed in the CO hotspot analysis.

7. Comment: “The travel and emissions analysis presented in the Hagler Bailly Report is inaccurate and unreliable. The travel and emissions analysis relies on inaccurate population and employment projections for the Midtown area. The Hagler Bailly Report purports that the Atlantic Steel Project performs better from a regional perspective both in terms of vehicle-miles traveled (VMT) and mobile source emissions when compared to a similar development located elsewhere in the metropolitan region. In calculating regional emissions, the Hagler Bailly Report indicates that they used the ARC regional transportation model TRANPLAN. This ‘models behavior given the population and employment projected and distributed for year 2015.’ However, ARC projects that Midtown Atlanta will add only 4,528 jobs and 193 residents between 2000 and 2010 (see Hagler Bailly Report at p. 7), which projections obviously and dramatically underestimate population and employment growth in the Midtown area, as discussed above. By materially underestimating population and employment growth in the Midtown area, the model necessarily underestimates key information used to calculate air quality emissions arising from the Atlantic Steel Project, including number of trips, traffic volumes and traffic speeds. The model output and the resulting comparative analysis of the travel and emissions projections for the Atlantic Steel site and alternative regional sites are therefore inaccurate and unreliable. Based on such materially flawed estimates, no rational administrative body can conclude that the Atlantic Steel Project produces the necessary air quality benefits to qualify for inclusion as a TCM in the State of Georgia State Implementation Plan.”

Response: EPA utilized ARC's travel demand model to perform a comparative analysis of projected VMT and associated emissions generated by the proposed Atlantic Steel redevelopment and three other hypothetical developments of similar magnitude at other likely sites in the Atlanta region. The study analyzed the differences in regionwide VMT and emissions between the four scenarios. The effects of any inaccuracies in the Midtown population and employment growth assumptions in the ARC travel demand model would be present in all four scenarios and would probably tend to cancel each other to a certain extent in the comparative analysis.

There is no reason to expect that using lower-than-expected background Midtown growth would bias the analysis in favor of the Atlantic Steel site. Rather, if Midtown grows faster than forecast, one would expect the regional travel and emissions benefits of the Atlantic Steel redevelopment to be even greater than forecast. The principal measure of the Atlantic Steel project's potential for reducing future transportation-related emissions is the reduction in VMT compared to the other scenarios. VMT, in turn, is predominantly a function of proximity to other origins and destinations. It is likely that if the Midtown employment and population estimates had been higher in ARC's model, given the relatively short travel distances and high transit and pedestrian accessibility between the Atlantic Steel project and Midtown, then the performance of Atlantic Steel Project would have been even better compared to the other scenarios in terms of its potential to reduce VMT and concomitant emissions.

EPA would also like to clarify that ARC is the officially designated Metropolitan Planning Organization for the Atlanta region per 23 U.S.C. 134 and section 8 of the Federal Transit Act, and ARC is therefore responsible for developing population and employment forecasts for use in transportation and other planning activities for the region. As such, the population and employment growth forecasts contained in the ARC travel demand model for Midtown represented the most recent and best data available to EPA at the time of EPA's Atlantic Steel regional emissions analysis.

8. Comment: “The transit usage percentage assumptions used in the Hagler Bailly Report are unsupported and unreliable. The Hagler Bailly Report assumed a 37% transit share for the project (27.07% work and 10.68% non-work, see p. 24). We have explained why that analysis is unsupported in our letter to Mr. Ben West at EPA dated April 26, 2000, and refer you to that letter, a copy of which is enclosed for your information. The transit share assumptions presented by Hagler Bailly are not supported. Since transit travel reduces VMT for a site, the size of the transit share assumption is a material component of the input data to the MOBILE5a model used by Hagler Bailly to calculate the projected emissions from the Atlantic Steel Project and similar development at alternative regional locations. Hagler Bailly assumed that transit share was greatest at the Atlantic Steel site (37%), compared to 18.5% at the Perimeter/Sandy Springs site, 2.6% at the Fulton/Cobb site and no transit at the Henry County site. The Hagler Bailly Report purports that locating development at the Atlantic Steel site produces significant regional emissions benefits compared to locating the development at the alternative regional locations chosen based on the output of the MOBILE5a modeling (see Figure 6) using the above transit share input data.”

Response: The transit shares in the regional emissions analysis were not assumed a priori, but rather they resulted from calculated forecasts using ARC's travel demand model. The model calculated a 27 percent transit share for work-related trips and a 10 percent share for non-work trips. With respect to the assumptions used in the modeling, the model is based on travel surveys and calibrated to travel behavior in the Atlanta region. The model is the same one that is used for regulatory submissions for the Atlanta region. EPA can provide a full set of model documentation upon request.

In addition, it is mathematically improper to add the two transit share numbers to obtain a total transit share. Because work trips are only around a quarter of the trips associated with the site, a weighted average is needed to obtain a total transit share of all trips. Such a calculation would yield something between 10 percent and 27 percent, with a result likely around 15 percent.

EPA responds to the specific points regarding the Hagler Bailly transit usage percentage assumptions raised in APCA's April 26, 2000, letter to Mr. Ben West in response to comment #9 below.

9. Comment: “[The Hagler Bailly] study contains a chart (p. 23) stating that it estimated 27% of work-related trips and 11% of non-work related trips would be made by transit. The study explains those estimates as based on the Atlanta Regional Commission's transportation model (the ‘ARC model’). However, the Hagler Bailly study does not explain the assumptions plugged into the ARC model which resulted in the 27%/11% figures. Nor does the Concept Report. Moreover, Hagler Bailly estimated a regional average of 8% for work-related trips and 2% for non-work related trips. Thus, the ARC model estimated that transit use for Atlantic Steel would be 300% to 500% higher than the regional average, a dramatic difference which illustrates the importance of the failure to explain the 27%/11% estimates. Finally, the Hagler Bailly study acknowledged that the use of the ARC model included undefined ‘selective judgments’ and that the ARC model usage was compromised insofar as the consultants lacked ‘information about households’ in the affected areas and they were forced to use ‘regional average’ socioeconomic data instead. Thus, the Concept Report provides no information, much less evidence, to support Hagler Bailly's use of the ARC model to arrive at the assumption of 27%/11% transit use. Therefore, the Hagler Bailly study presents no basis upon which a rational administrative decision could be predicated.”

Response: EPA developed limited inputs to ARC's travel demand model in order to include the Atlantic Steel project in the regional emissions analysis. The inputs were specific to the project and were confined to the traffic analysis zones in which the development would be located. The inputs included: the total number of residents and employees; households stratified by income and number of occupants; the highway network link(s) representing the 17th Street bridge; and the transit network link(s) representing the transit service. EPA did not alter ARC's inputs for the socioeconomic data and transportation network for the remainder of the Atlanta region, or the variables internal to the model which describe travel behavior (e.g., trip generation rates, mode choice model).

EPA assumed that the Atlantic Steel project would accommodate 6,000 residents and 17,483 employees by the year 2015 (page 45 of the Hagler Bailly study). Due to variability in forecasts of the socioeconomic characteristics of the households in the redevelopment, EPA chose to use regional averages to distribute the 6,000 residents into households by income and number of residents per household. EPA would like to clarify that this assumption was used only for the Atlantic Steel redevelopment, and not for households in surrounding areas, for which the ARC inputs were used. EPA believes that this was a reasonable assumption for the purposes of the study. EPA consulted with the developer in order to classify the 17,483 employees by employment type (e.g., construction, manufacturing, retail, service) based on forecasted uses of the site. 17th Street was modeled with two general purpose lanes in each direction and one high-occupancy vehicle (HOV)/transit lane in each direction stretching from Northside Drive to the west of the Atlantic Steel site through the site and bridging Interstate-75/85 to Spring, West Peachtree, and Peachtree Streets to the east. It also included (general purpose) connections from Interstate-75/85. The transit service was modeled as a bus route connecting the site and the MARTA Arts Center station, operating 10 hours a day at 15 minute headways (time between buses), free of charge. EPA would like to point out that the developer has committed in the TCM to providing bus service which complements the hours of service and headways of the trains serving the MARTA Arts Center station. Currently, this means that the bus service would operate 18.5 to 20 hours per day at four to eight minute headways. All of these assumptions are contained in the docket for this rulemaking.

EPA executed ARC's travel demand model using the inputs described above, and the model predicted that 11 percent of non-work related trips associated with the Atlantic Steel redevelopment, and 27 percent of the work-related trips would take transit. Spot checks of transit mode splits predicted by ARC's model for areas surrounding the Atlantic Steel site were made and were found to be consistent with the predictions for the redevelopment. Furthermore, it is likely that the predicted transit mode splits for the Atlantic Steel redevelopment would have been even higher if the transit service had been modeled using the longer hours of service and shorter headways contained in the TCM. Finally, the reason the regional average transit mode share is much lower (8 percent for work-related trips and 2 percent for non-work-related trips) is because it includes a significant number of areas that lack reasonable walk or drive access to transit, which lowers the average.

10. Comment: “In addition, the Hagler Bailly analysis assumes the existence of transit service for the entire period tested even though transit service is required to be provided only for a period of 10 years after the 17th Street bridge opens to traffic.”

Response: The Atlantic Steel TCM has been revised to include a commitment by the developer to provide the rubber-tired shuttle service for ten years from the date that the 17th Street bridge opens to traffic or until December 31, 2015, whichever is longer. The developer's obligation will cease if, during the period of obligation, an appropriate entity operates a fixed mass transit link providing a similar level of service. The commitment in the TCM is now consistent with the transit connection modeled in the regional emissions analysis.

11. Comment: “The critical finding of the TCM Document is based on that flawed analysis. Specifically, “that the Atlanta region will continue to grow, and that redevelopment of the Atlantic Steel site will produce fewer air pollution emissions than an equivalent quantity of development that likely would occur at other potential sites in the region, if the Atlantic Steel redevelopment were not to occur.”

Response: EPA believes that the findings of the regional emissions analysis are sufficient. First, based on historical trends and current projections it is reasonable to assume that the Atlanta region will continue to grow. According to ARC, since 1970 the population of the Atlanta region has more than doubled, and ARC projects that it will continue to grow by another 42 percent by the year 2025. Second, based on historical trends and current projections it is reasonable to assume that some fraction of the development represented by the Atlantic Steel redevelopment would locate outside of the urban core if it is not built at the Atlantic Steel site. According to ARC, while the regional population more than doubled since 1970, the population of the City of Atlanta, located at the core of the region, declined by roughly 14 percent. In addition, since 1980, only 3 percent of the growth in jobs has occurred in the core. According to ARC projections, between 2000 and 2025, 90 percent of new residents and 80 percent of new jobs in the region are expected to locate outside the City of Atlanta. Finally, EPA believes that it is reasonable to conclude that a high density, mixed-use development, centrally located in the urban core and designed with high transit and pedestrian accessibility would create less VMT and concomitant emissions than a comparable development at a less regionally central, less transit and pedestrian accessible location.

12. Comment: “The unsupported transit share input data, together with the unwarranted assumption of continuous transit service for the period tested, invalidates the model output. Therefore, the Hagler Bailly comparison of projected emissions at the Atlantic Steel site and development at an alternative regional location (see Hagler Bailly Report at Figure 6, p. 21) does not present a rational basis for the above-quoted finding in the TCM Document and thus cannot support an administrative decision that the Atlantic Steel Project qualifies as a TCM for inclusion in the State of Georgia SIP.”

Response: EPA explained in the responses to comments #8 and #9 that the transit share data are outputs of the model and not input data, and that the developer has committed to supply the shuttle bus through the period considered in the regional emissions analysis.

13. Comment: “There is insufficient evidence that funding has been (or will be) obligated to implement the measure. EPA indicates that this is one of the six criteria required to be satisfied before designation of a measure as a TCM. While identifying the source of funding of all related construction costs for the Atlantic Steel TCM, the TCM Document fails to identify a source of funding to ensure that all performance targets are met. The TCM Document provides that if the performance targets for the project are not met, the developer must identify funding or fund a Transportation Management Association (TMA) for 20 years, if employers and property managers are not already participating in one. It is presently anticipated that employers and property managers will participate in the TMA being set up for the Midtown business district. As presently proposed, no further obligation to ensure compliance with the performance targets is imposed on the developer once initial funding for the TMA has been identified. Thereafter, the City of Atlanta, not the developer, must ensure that the performance targets are met at each evaluation period. The TCM fails to identify a source of funding for the obligations imposed on the City of Atlanta to monitor the effectiveness of the Atlantic Steel TCM and to take additional measures to ensure performance targets are met. These additional measures could include providing increased transit service or undertaking traffic calming measures involving construction on city streets, the costs of which are not discussed or identified. Neither the City of Atlanta Transportation Impact Fee Ordinance nor the Atlantic Steel Brownfield Area and Tax Allocation District Number Two, both identified as sources of funding for construction costs relating to the Atlantic Steel Project, contemplate use of such funds to provide transit service at the site or other measures to ensure TCM performance targets are met. To satisfy this EPA criterion for designation of the Atlantic Steel Project as a TCM, both the amount of funds that could reasonably be anticipated to meet these additional obligations and a source of such funds must be identified. This is particularly critical given the limited obligation to maintain transit at the site currently contemplated in the TCM Document.”

Response: Regarding a source of funding for the obligations imposed on the City of Atlanta to monitor the effectiveness of the Atlantic Steel TCM, the developer has committed to monitoring and collecting the travel behavior data along with the City of Atlanta. This commitment includes funding. The Atlantic Steel TCM has been revised to include this commitment.

EPA disagrees that the TCM must identify the amount and source of funds for as yet undetermined additional future strategies that might be necessary to meet the performance targets contained in the TCM. It is not possible to predict every possible outcome of the implementation of the Atlantic Steel TCM, however EPA believes that the mechanisms contained in the TCM are sufficient to ensure that the project will be monitored and potential problems will be identified and addressed as needed.

EPA believes that the TCM performance targets will be met without any additional strategies. As a safeguard, the TCM includes both a monitoring program to assess whether the targets have been met and a commitment by the City of Atlanta to fund or identify funding for any additional strategies needed to meet the targets. The scope, design, and costs of any potential additional strategies will depend on the nature of the transportation problem(s) and on the associated travel behavior. The monitoring program for the Atlantic Steel TCM has been designed to collect the data that will form the basis for any additional strategies needed to meet the performance targets in the TCM. If and when the project fails to meet one or more of the performance targets in the TCM, it will be the federally-enforceable responsibility of the City of Atlanta, as sponsor of the Atlantic Steel TCM, to either identify the funding source(s) or fund the strategies necessary to meet the performance targets contained in the TCM.

14. Comment: “The monitoring program to assess the measure's effectiveness and to allow for necessary in-place corrections or alterations fails to include important and necessary elements. Site design criteria are insufficient because they omit a standard for traffic speeds in the development and a standard for pedestrian route directness. In the discussion of the relative merits of the three site designs analyzed, the TCM Document indicates that the Jacoby redesign and the Duany Plater-Zyberk & Co. (DPZ) design excel when compared to the original Jacoby design for three reasons. The site design criteria included in the TCM Document already reflects two of those reasons but fails to include the third which is that ‘the pedestrian environment is improved through street design that includes more direct routing and slower traffic speeds.’ Since EPA itself considers traffic speeds and pedestrian route directness important and because the City of Atlanta zoning conditions do not address these issues, they should be included as additional site design criteria in the TCM Document with appropriate targets.”

Response: EPA believes that the site design criterion entitled “External Street Connectivity,” which requires the average distance between site ingress/egress streets to be less than or equal to 1,000 feet, serves as a surrogate for pedestrian route directness that is simpler to monitor and enforce. This criterion will ensure that the street network and associated sidewalks and bike paths in the redevelopment will be well integrated into the existing fabric of the surrounding neighborhoods, thereby enhancing pedestrian route directness. In addition, the original site plan, particularly the west side, was altered based on the DPZ design to better frame the pedestrian areas by creating clear progressions of pedestrian-oriented uses. Pedestrian-oriented retail has been added to the west side along 16th Street and around a public plaza at the heart of the technology park (as depicted in the original design), now a reconfigured and newly defined “Tech Village.” Independent of the defined pedestrian route system along the community's streets, a secondary pedestrian route system is defined through a series of parks and plazas, not only linking the various uses within the redevelopment, but also linking the adjoining neighborhood to the south.

In terms of traffic speeds, the external street connectivity criterion should also result in intersections that are spaced more closely together, which will have an inherent traffic calming effect. In addition, the developer incorporated site design recommendations made by DPZ that will reduce speeds. For example, to address the issue of high-speed geometries, block sizes were reduced and the road network was reconfigured to parallel the existing urban grid system. Building setbacks were eliminated where possible. In many cases, buildings start at the right-of-way line. Furthermore, on-street parking is a traffic calming device that is integral to an urban pedestrian streetscape, and the developer has committed in the XL Final Project Agreement to pursue on-street parking on all streets other than 17th Street within the development. 17th Street is the exception because initial discussions with GDOT and traffic engineers have identified the area around the lake and park as the only appropriate section of 17th Street to accommodate on-street parking.

For these reasons, EPA believes that it is unnecessary to include detailed standards for traffic speeds and pedestrian route directness in the TCM.

15. Comment: “The proposed method of evaluation of the development as a transportation control measure is insufficient. Evaluation of the Atlantic Steel Project as a transportation control measure occurs 2, 31/2, and 5 years after the 17th Street bridge opens to traffic. At these intervals, VMT per resident, VMT per employee and mode split will be examined. The TCM Document imposes no further obligation on the developer if VMT per resident or VMT per employee is equal to or lower than the regional average or if the modal split is greater than or equal to the regional average. The Atlanta regional VMT averages are presently among the highest in the nation and the modal split is below 8%. EPA has granted flexibility for this development under Project XL precisely because the project is expected to generate fewer vehicle miles of travel. Including targets that are merely equal to the regional averages is inconsistent with the justification provided by EPA for designation of the Atlantic Steel Project as a TCM. These evaluations should have average VMT for residents and employees that are lower than regional averages and decline gradually at each successive evaluation and a modal split target greater than regional averages and gradually increasing at each successive evaluation to justify the flexibility granted for the Atlantic Steel Project.”

Response: EPA would like to clarify that monitoring of the TCM will start when the 17th Street bridge opens to traffic and will continue on an annual basis until ten years following redesignation by EPA of the Atlanta area to attainment under the NAAQS for ozone. In addition, the TCM will be evaluated by the City of Atlanta, EPD, and EPA using performance targets defined in the TCM for VMT per resident, VMT per employee, mode split, and total daily vehicle trips. If it is determined that the TCM is not meeting or beating the performance targets, then the developer will identify funding or fund the creation of a TMA for the site for a period of 20 years (if employers on the site aren't already participating in one), and the City of Atlanta will work with the TMA to develop and implement measures to help the TCM meet the performance targets. However, the manner of evaluating the performance of the TCM will differ slightly depending on whether it is done: (1) during the first five years following the opening of the 17th Street bridge to traffic, or (2) during the sixth year following the opening of the 17th Street bridge to traffic or thereafter.

EPA expects the first five years following the opening of the 17th Street bridge to traffic to be an interim period during which the redevelopment will be undergoing construction and the numbers of residents, employees, and uses, and the associated transportation options, patterns, and behaviors on the site will be in a state of flux.

Therefore, the data collected for the TCM during this period may not be representative of the ultimate performance of the project at build-out. Therefore EPA believes this interim period should provide some flexibility to meet the performance targets during the near term, as the site matures, while ensuring that the project demonstrates progress toward the final TCM performance targets for year six and thereafter.

EPA agrees with the commenter that the performance targets for the interim period in the proposed rulemaking were insufficient. In the proposed rulemaking, the TCM was required to perform better than the regional averages for VMT per resident, VMT per employee, and mode split during the interim period, but it did not have to demonstrate progress toward meeting the final performance targets for year six and thereafter. Therefore, the TCM has been revised so that it is required to perform better than the regional averages and demonstrate progress toward meeting the final performance targets during the interim period. The TCM will be evaluated at two, three-and-a-half, and five years following the opening of the 17th Street bridge to traffic. As in the proposal, in year two, the TCM must perform better than the regional averages. However, in year three-and-a-half, the TCM must perform better than it does in year two (unless it is already meeting or beating the final performance targets), and in year five, it must perform better than it does in year three-and-a-half.

Starting the sixth year after the 17th Street bridge opens to traffic, the performance of the TCM will be compared with the final TCM performance targets. EPA would not approve the Atlantic Steel TCM if it did not believe that the project has the potential to perform significantly better than the regional averages in terms of VMT per resident, VMT per employee, and mode split. Therefore, the final Atlantic Steel TCM performance targets are set at levels that beat the current Atlanta regional averages by 20 percent or more, and EPA expects the project to easily attain the target values.

16. Comment: “The TCM Document fails to provide performance targets that capture the majority of projected trips generated by the site. In its analysis of trips generated by the Atlantic Steel site, the Georgia Department of Transportation (GDOT) projected that retail trips, exclusive of office and residential trips, would account for approximately 45% of all weekday and 58% of all weekend trips generated by the site. The effectiveness of the site as a TCM depends largely on its ability to reduce the number of trips generated by the site, hence the inclusion of performance targets aimed at reducing resident and employee trips. However, if these account, as GDOT projects, for less than half of all trips generated by the site, a performance target of 25% of all resident and employee trips represents only 13.7% of all projected weekday trips (25% of 55%), and 10.5% (25% of 42%) of all weekend trips generated by the site. Therefore, the performance targets account for only half of all projected trips generated by the site and cannot meaningfully measure whether the Atlantic Steel Project is performing effectively. Moreover, EPA's consultants projected that the Atlantic Steel location would perform better than development at alternative regional locations assuming a transit share of 37% of all trips generated by the site, 270-350% above that provided for in the performance targets specified in the TCM Document. Therefore, it is possible that the performance targets specified in the TCM Document could be met at the same time the Atlantic Steel Project produces significantly greater emissions of NOx, VOCs and CO, than those projected by the Hagler Bailly Report. The TCM Document fails to monitor the majority of trips generated by the site. As indicated above, the majority of trips generated by the site are projected to be retail trips. The TCM Document imposes an obligation on the City of Atlanta to collect and maintain data concerning travel behavior of residents and employees on the site but fails to require any information concerning retail trips. Failure to monitor the majority of trips to and from the site undermines the ability of the TMA to implement effective strategies to meet identified performance targets. Moreover, failure to monitor retail trips generated by the site prevents EPA from determining that the Atlantic Steel TCM is successful in producing regional emissions benefits even if performance targets for residents and employees are met. To justify designation as a TCM, the Atlantic Steel development must be able to demonstrate regional air quality emissions benefits. Without adequate information concerning retail trips, the EPA cannot rationally measure the effective of the measure as a TCM. For this reason, the TCM Document fails to comply with this EPA requirement for designation as a TCM.”

Response: EPA does not believe that the effectiveness of the Atlantic Steel TCM depends largely on its ability to reduce trips generated by the site, but rather on: (1) its ability to reduce the average distance of trips to and from the site compared to the trips that might have occurred had the development been built at other likely areas in the region; (2) its ability to reduce the number of trips that leave the site (i.e., a high internal capture rate); and (3) its ability to shift the trips made to, from, and on the site to modes of transportation other than the single-occupancy vehicle (SOV). This is why the TCM contains site design criteria—to ensure that the site is built with the densities, mix of uses, and transit and pedestrian features to support a high internal capture rate and transit mode split—and performance targets for VMT per resident and VMT per employee and percentage of trips by non-SOV modes.

At the same time, EPA recognizes that trips generated by and attracted to the redevelopment will have localized impacts that accrue with each additional trip. Therefore, a new performance measure has been added to the Atlantic Steel TCM to help limit the localized impacts due to trips to and from the redevelopment. The new performance measure addresses average daily total vehicle trips to and from the site, other than by transit, for all purposes combined, including retail trips. Daily total vehicle trips include those trips that have an on-site origin and an off-site destination, and trips that have an off-site origin and an on-site destination. It does not include trips that pass through the site but do not have an on-site origin or destination, and it does not include trips that have both an on-site origin and an on-site destination (i.e., internal capture). The target value for average daily total vehicle trips is 72,000 or less. This number is based on the predicted total vehicle trips for the site used in the CO hotspot analysis, EA, and 17th Street Concept Report. If the project exceeds this target, then the same contingencies take effect as in the case when any of the other performance targets is not met.

The reason that the TCM performance measures target only the trips made by residents and employees of the redevelopment is because the characteristics of the retail trips would be difficult to measure. However, the TCM allows the City of Atlanta to request that other information, such as characteristics of retail trips, be collected as a part of the TCM monitoring process. The new total vehicle trips performance measure will help constrain the emissions impacts of all trips to and from the redevelopment, including retail trips.

17. Comment: “Further, the TCM Document acknowledges that without approval of an Information Collection Request (ICR) any component of the monitoring that requires a survey of ten or more people may not be enforceable. The TCM Document does not address the likelihood of obtaining such an approval. If the EPA is unable to enforce the monitoring requirements imposed in the TCM Document and thus unable to assess the effectiveness of the measure, designation of the Atlantic Steel site as a TCM cannot be rationally justified.”

Response: Under the Paperwork Reduction Act and Office of Management and Budget (OMB) regulations, OMB cannot approve a collection of information for a period longer than three years. (See 35 U.S.C. 3507(g); 5 CFR 1320.11(j).) However, it will be several years before monitoring of the Atlantic Steel TCM performance will commence, and therefore it would serve no purpose to submit an ICR at this time, as it would likely expire before data collection begins. Instead, EPA will wait to submit an ICR to OMB until the time for monitoring (i.e., the opening of the 17th Street bridge to traffic) draws near. If, as a result of OMB review, EPA determines that revisions to the rule are appropriate, EPA will reopen its final rulemaking to ensure that the performance of the Atlantic Steel TCM will be adequately monitored.

18. Comment: “There is inadequate provision of transit to the site to justify its designation as a TCM. The TCM Document assumes the redevelopment plan includes a linkage to MARTA. The TCM Document, however, requires the developer to maintain the shuttle bus service to the MARTA station only for 10 years after the 17th Street bridge opens to traffic. After that time, there will be no transit servicing the site unless some other agency steps in. Except for the shuttle bus service the developer must provide, there is currently no commitment of funds for the provision of transit service to the Atlantic Steel site. Further, the importance of transit servicing the site is evidenced by the high transit share assumption used by EPA's consultants in analyzing the positive estimated emissions benefits from the Atlantic Steel Project compared with alternative regional locations. Hagler Bailly assumed a transit share of 37% for the Atlantic Steel Project, a modal split that will be impossible to achieve if no transit service exists. For this additional reason, designation of the Atlantic Steel Project as a TCM cannot be supported by a rational administrative body.”

Response: The TCM has been revised to include a commitment by the developer to provide the rubber-tired shuttle service at least until December 31, 2015, which could be longer than 10 years, unless an appropriate entity operates a fixed mass transit link providing a similar level of service before that date. (See response to comment #10.)

Although currently there is no commitment of funds for transit service to the Atlantic Steel site beyond the developer's commitment, EPA believes it is reasonable to expect that transit will continue to serve the Atlantic Steel redevelopment after the developer's commitment expires. The 2025 Regional Transportation Plan (RTP) for the Atlanta region adopted by ARC anticipates assigning $1,677,000,000 for the construction of a light rail line from the MARTA Arts Center station through the Atlantic Steel redevelopment and extending northwest to the Town Center area in Cobb County (RTP projects AR-251A, AR-251B, and AR-251C). The first phase of the project, which would connect the MARTA Arts Center station to the Cumberland area through the Atlantic Steel redevelopment, is anticipated to be operational by 2010. The developer has committed in the TCM to provide without cost right of way in the development to MARTA or other acceptable entity for the construction of a transit linkage connecting the Atlantic Steel site to the MARTA Arts Center station.

In addition, the RTP includes $1,000,000 for a downtown westside transit study (AR-325). One of the objectives of the Central Atlanta Transportation Study (CATS), currently underway, is to develop alternatives for mobility between the Atlantic Steel redevelopment and the Georgia World Congress Center and destinations between, including transit. EPA also believes that MARTA will expand or alter its existing bus routes to include service to the Atlantic Steel site once the redevelopment attains a transit-supportable level of residents, employees and other trip generators.

For these reasons, EPA believes that the transit commitment supports approval of the Atlantic Steel TCM.

19. Comment: “The TCM Document fails to demonstrate that achievement of performance targets identified will result in improved regional emissions. The TCM Document includes a transit capture target of 25% to be measured after two-thirds build-out or six years after the 17th Street bridge opens to traffic, whichever occurs first. In its comparative analysis of the Atlantic Steel Project with development at other regional locations, Hagler Bailly assumed a transit capture of 37%. If a mode split of only 25% is achieved, the TCM Document does not indicate how this will impact regional air emissions or whether the underlying justification for designation of the Atlantic Steel Project as a TCM still applies nor does it indicate whether CO hotspots might result.”

Response: The TCM includes a performance target that requires 25 percent or more of all trips to, from and on the site made by residents and employees combined, to use modes other than SOV. This target is not restricted to transit, but may also include pedestrian, bike, and HOV modes. EPA anticipates, however, that roughly 15 percent of the trips will be made via transit. This is consistent with the regional emissions modeling performed for the TCM and the CO hotspot analysis.

20. Comment: “The TCM Document does not include accurate data on the plans for development of the site. The TCM Document describes the proposed development to occur on the site. At the public information meeting on April 18, 2000, the developer indicated that it planned to build in excess of 3,600 residential units on the site. The SIP revision should accurately reflect current plans for the development.”

Response: The developer has revised the site plan to match the assumptions contained in the TCM. In addition, as discussed in response to comment #16, a new performance target for total vehicle trips has been added to the TCM to limit total vehicle trips to and from the redevelopment. The new performance target is designed to help limit localized traffic and air quality impacts without constraining the amount of development at the site. Therefore, any increase in the amount of development over the numbers contained in the TCM should not result in higher emissions than those projected in EPA's analyses.

21. Comment: “The number of lanes on the bridge must be reduced and the design speed must be 25 mph. We oppose any extension of the bridge's vehicular traffic lanes to West Peachtree Street and/or Peachtree Street. There is currently no 17th Street between Spring Street and West Peachtree Street which provides a buffer that protects the Ansley Park historic residential neighborhood. Creating a passage along 17th Street will funnel thousands of cars directly at Ansley Park and will invite drivers to use Ansley Park as an east-west cut-through to get not only to the Atlantic Steel site but also directly to the interstates.”

Response: EPA encourages GDOT to design the 17th Street bridge and associated interchange and roadway projects to maximize pedestrian, bicycle and transit orientation while minimizing additional SOV capacity. However, GDOT is responsible for determining the safe and appropriate number of lanes and design speeds for this project. Details regarding GDOT's traffic studies may be found in the 17th Street Concept Report and in the EA for the 17th Street Extension and Atlantic Steel Redevelopment. These documents are included in the docket for this rulemaking.

Regarding extension of the 17th Street to West Peachtree and Peachtree Streets, Spring and West Peachtree Streets form a north-south one-way pair, and therefore West Peachtree is a logical terminus of the extension of 17th Street. Once again, it is the responsibility of GDOT to design the roadways consistent with the need and purpose of this project. In addition, GDOT has determined that the design speed for 17th Street will be 35 mph. However, the City of Atlanta will be responsible for posting and enforcing speed limits on 17th Street and surrounding roadways, and may set the speed limits lower than the design speeds.

22. Comment: “The Georgia Department of Transportation (Georgia DOT) has designed the bridge and related highway improvements to accommodate suburban style vehicular access to Midtown and the Atlantic Steel site. The size and design of the vehicular access is inappropriate for transit-oriented development. The health of citizens and the future economic vitality of the region require that we create places where riding transit and bikes, and walking are the preferred means of travel. Midtown is one of the few places in the region where we have the mix of uses, transit service and density to create true transit-pedestrian oriented living and working. The emphasis for this area should be on improving transit and pedestrian access.”

Response: The 17th Street bridge will include a transition into Midtown to connect with existing surface streets in the area. This will require modifications to several surface streets and intersections in the surrounding area (e.g., Spring Street, West Peachtree Street, Peachtree Street, Williams Street, 14th Street, 16th Street, Techwood Drive). The original design for 17th Street and its connection to existing surface streets and intersections was based primarily on capacity criteria related to accommodating future traffic volumes. However, the City of Atlanta and a number of public, community, and business leaders expressed significant concerns about the scope and extent of the proposed modifications.

In response to these concerns, several key intersections and surface streets were redesigned. Additional urban design criteria were considered such as pedestrian safety and aesthetics, with less emphasis on accommodating future traffic volumes. The focus of the changes was to reduce: driving speeds, lane widths, the number of through and turning lanes, and turning radii of intersections. The ultimate objective was to balance the needs of cars, buses, bicycles, and pedestrians to better integrate 17th Street into the urban fabric of Midtown, and coordinate more closely with the vision for Midtown provided by the Midtown Alliance and “Blueprint Midtown.” Details regarding the redesign may be found in the 17th Street Concept Report and in the EA for the 17th Street extension and Atlantic Steel redevelopment. These documents are included in the docket for this rulemaking.

23. Comment: “The only additional vehicular access from the Interstate highways to Midtown and Atlantic Steel should be for high occupancy vehicles. Creating more access for SOVs creates a time disincentive for people to ride transit to the site. There are already three SOV ramps in each direction from the Interstates to Midtown, but there are no dedicated HOV ramps. In addition, the design of any vehicular access to Midtown should assume that vehicles exit the freeway at or below the posted speed for the Interstate. Excess speed on the Interstates and other roadways contribute significantly to the region's air pollution problems. GDOT has contributed to the speed problem by designing most Interstates in the region for an average speed of 70 mph. Any roadway improvements in the Midtown area should improve pedestrian access. Without high quality and continuous pedestrian facilities transit does not work. Turn radii and crosswalk lengths must be minimized. Finally, the construction of any roadway improvements should be staged to prevent excess capacity early from inducing additional vehicular travel, and to provide an incentive for using transit. Specifically, the bridge itself should have no more than one SOV lane in each direction. An additional lane in each direction should be reserved for buses only.”

Response: Several alternatives were considered that would provide HOV access as part of the project. The first alternative considered direct HOV access to and from the 17th Street bridge. However, due to engineering and site constraints, it was determined that HOV access could be provided to the bridge, but no return access to the Interstate could be provided. In addition, provision of HOV access from the Interstate would significantly impact the future ability to redesign the Interstate-75 southbound to Interstate-85 northbound loop. Therefore, direct access to the 17th Street bridge was not considered further.

Several additional HOV access alternatives were considered: (1) access at 5th Street and a new 12th Street HOV-only bridge; (2) HOV-only bridge at 15th Street; and (3) reconfiguration of the 14th Street bridge to accommodate HOV access. However, due to the scope of these alternatives and based on the concerns raised by the public and other agencies, it was decided to separate out HOV access from this project. A future regional study examining the optimal location of HOV access into Midtown and potentially Atlantic Steel will be completed as a separate project. The design of the 17th Street bridge will not preclude any possible HOV access alternatives that may be identified in the future.

As EPA explained in response to comment #21, GDOT is responsible for designing the 17th Street bridge and associated interchange and roadway modifications. However, as explained in response to comment #22, GDOT has responded to many of the commenter's concerns by redesigning several key intersections and surface streets in the project. Details regarding the redesign may be found in the 17th Street Concept Report and in the EA. These documents are included in the docket for this rulemaking.

24. Comment: “The developer is potentially held in jeopardy if the City of Atlanta and MARTA do not implement the transit service described in the agreement. The development at this site should only be allowed if there is a dedicated funding source for the transit service. Specifically, an increment of the increased taxes collected from development at and near the Atlantic Steel site be dedicated to transit service connecting the site to adjacent neighborhoods, downtown and the Arts Center rail station.”

Response: It is the developer, not the City of Atlanta or MARTA, that has committed to provide the transit service described in the TCM. Therefore, the developer will be responsible for funding and implementing the transit service, whether it is through public or private sources, or a combination of the two. As suggested by the commenter, it is possible that a portion of the funds generated by the Brownfield Area Tax Allocation District #2, which includes the Atlantic Steel redevelopment, may be used to support the transit service.

25. Comment: “We are concerned that the proposed transportation improvements for the Atlantic Steel site do not meet the standards for transit service or transit oriented design necessary to justify the TCM designation for the highway improvements. We are especially concerned that the large highway improvements will undermine the developer's emphasis on transit accessibility.”

Response: EPA believes that the transit components of the project support the TCM designation. In particular, the transit components include: a 10-plus year commitment by the developer to provide a shuttle bus connection to the site that will be well integrated into the MARTA Arts Center station; a high level of service with hours of operation and headways that complement the train schedule at the MARTA Arts Center station; a route that covers the site, including four stations and six stops; compliance with the Americans with Disabilities Act; dedicated transit lanes with possible signal prioritization; a transit-oriented site design criterion; a requirement that the 17th Street bridge be designed to accommodate future rail transit; and the developer's intention to utilize alternatively-fueled buses. EPA continues to encourage GDOT to design the associated roadway improvements to maximize the transit, pedestrian, and bicycle orientation of the project.

26. Comment: “We do not believe the Environmental Protection Agency has adequately responded to the concerns and suggestions made by the Environmental Defense Fund (EDF) in a letter dated February 1, 1999. In addition, the analysis of the TCM Document by APCA in a letter dated May 10, 2000, raises serious concerns about the technical adequacy of the transportation and development analysis. Before approving the TCM for the 17th Street bridge and related highway improvements EPA should review the issues raised by EDF and APCA, correct deficiencies in the analysis and respond to the issues raised.”

Response: EPA has responded to APCA's May 10, 2000, letter in the responses to comments #1 through #21. In addition, EPA collaborated with the City of Atlanta and the developer to revise the proposed TCM to help address concerns raised by APCA. EPA is approving the TCM and revisions.

EPA responds to the issues raised in the February 1, 1999, EDF letter below.

27. Comment: “We want to be assured that, as a TCM, the package that includes the 17th Street bridge/interchange will demonstrate a contribution to better air quality, rely on rigorous evaluation and follow-up measures, be a real, permanent, and legally enforceable part of the SIP, and be subject to EPA approval, with opportunities for meaningful and substantive public involvement. Once the bridge, interchange, and related real estate development is built, it will not be possible to shut these down if they fail to meet their planned performance objectives.”

Response: In the proposed rulemaking, EPA described in detail: the regional emissions analysis which indicates that implementation of the TCM will contribute to better air quality; the site design criteria, performance targets, and monitoring and evaluation plans which will help ensure that the TCM will meet the planned performance objectives; and the legal enforceability of the TCM. EPA believes that the public has had many opportunities for meaningful and substantive involvement in the development of the Atlantic Steel TCM through the Project XL, NEPA, and TCM processes. For example, as described earlier, the APCA's May 10, 2000, letter resulted in several revisions to the proposed TCM. In fact, as mentioned in the response to comment #2, EPA believes that there has been a much greater opportunity for public involvement in the Atlantic Steel TCM than there would be in the development of a typical TCM. A listing of public and interagency meetings regarding the Atlantic Steel project is contained in the docket for this rulemaking. In addition to the past opportunities for public involvement, the proposed TCM was revised to require that the developer and the City of Atlanta continue to meet with Neighborhood Planning Unit E and the Midtown Alliance as the Atlantic Steel site builds out to review the latest site plan and to discuss the preliminary results of the monitoring.

28. Comment: “Great care must be exercised in developing the project agreements, detailing realistic, but ambitious and enforceable quantitative criteria for transportation and environmental performance. These should include vehicle miles of travel, vehicle trip starts and trip ends, and mode share targets, as well as specific emission reduction objectives. These should be grounded in detailed analytic studies, with explication of supportive management and service strategies, and should be backed up by institutional and financial structures strong enough to guarantee compliance over time, with backstop arrangements. We suggest the project agreement and TCM package might be backed with a private performance bond that insures resources will be available to implement transit and TMA management measures as needed to meet the adopted performance criteria in the event of a financial default by the developer or failure of the TMA or transit service agreements to comply with the agreements.”

Response: As described in the proposed rulemaking and in response to comment #16, the TCM contains performance targets for VMT per resident and employee, non-SOV mode split, and total vehicle trips to and from the site. These performance measures are based in part on the regional modeling performed by EPA using ARC's travel demand model. The TCM also includes an enforceable commitment by the City of Atlanta to coordinate with the TMA for the site to develop and implement additional measures to help the project meet the targets if necessary. However, as explained in response to comment #13, EPA believes that it is not necessary for the City of Atlanta to identify funding sources for potential additional measures until such time as they may be needed.

29. Comment: “The location alone is not an adequate basis for deeming this or other land-use related projects as TCMs or awarding air quality credit to them. There are several factors that will have a profound impact on the travel behavior and air quality impacts related to the redevelopment and the related Bridge/Interchange TCM package. These include: the quality, quantity, location, and design of transit services and connections of the proposed redevelopment site to MARTA stations and to other regional trip generators and attractors; the degree of pedestrian and bicycle friendliness of urban and street design in and around the Atlantic Steel site; the supply, location, and price of parking, and other travel prices and incentives offered to travelers to and from the site; the design of the Bridge/Interchange itself and the way in which it connects across the Interstate highway. The project agreement, and the package that is submitted to become a part of the TIP, RTP, and SIP must clearly define these elements.”

Response: EPA agrees that location alone is not an adequate basis for deeming this project a TCM. EPA is approving this TCM for a variety of reasons in addition to its location, as described in the proposed rulemaking, including most of those mentioned by the commenter. EPA believes that the elements that make this project a TCM are clearly defined in the SIP and 17th Street Concept Report. These documents are included in the docket for this rulemaking.

30. Comment: “To meet these objectives, the project should include guaranteed funding mechanisms (such as a development district tax) for a Transportation Management Association (TMA) for the project and surrounding district. The TMA should be a public-private partnership with the power to influence key elements that shape travel behavior and emissions related to the Atlantic Steel site.”

Response: The formation of a TMA for Midtown is currently underway. In the fourth quarter of 2000 the business plan will be refined, marketing materials designed and printed, programs developed, and base line data statistics established. The Midtown TMA will begin offering transit programs beginning in January 2001. The TMA will cover roughly the area bounded by Northside Drive to the west, Piedmont Road to the east, the Interstate-75/85 Brookwood Interchange to the north, and Ralph McGill Boulevard to the south. The TMA will be funded initially through the Midtown Community Improvement District (MID), ARC and the Atlanta Transportation Improvement Program. Long term funding is expected to be through the MID and through fees paid by members of the TMA who are not also contributing to the MID. It is expected that the developer of Atlantic Steel will be invited to sit on the Advisory Board for the Midtown TMA, and that employers on the Atlantic Steel site will join the TMA as they come on-line.

31. Comment: “We are concerned that while the Bridge and Interchange have undergone significant preliminary engineering, there is still little specificity about the transit service connections to be provided to the Atlantic Steel site. Without a specific plan and financing arrangement, this missing key element seems enough to deem the project inadequately defined to make up an approvable TCM. And under current circumstances, unless the project is defined well enough to be an approvable TCM, we do not see how it can legally be approved as a part of the TIP, RTP, or SIP. We would hope to see a very high frequency transit connection between the Atlantic Steel site and MARTA, with service throughout the day and into the night that allows travelers to travel most of the time without worrying about scheduled connections. While light rail may be attractive, given the need for rapid deployment of a high quality transit link, flexible phasing of service, and currently limited financing, this context might be appropriate for application of a bus rapid transit system strategy, like that in Curitiba, Brazil, with high level boarding separate from fare collection, with designated stations, and potential to serve multiple trip origins.”

Response: The proposed transit service for the Atlantic Steel redevelopment is described in detail in the December 16, 1999, report entitled “Transit Connection Atlantic Steel Redevelopment Project to MARTA Arts Center Station Atlanta, Georgia.” EPA believes that the proposed transit service incorporates many of the suggestions made by the commenter. The transit report is included in the docket for this rulemaking.

32. Comment: EDF recommended several programs, incentives, and site design features (e.g., Employee Commuter Choice incentives, parking excise levies, bundling free or highly discounted annual regional transit passes with each residential unit, car sharing systems, real-time ridesharing services, secure short and long term bicycle parking) for inclusion in the TCM that would influence travel choice to the site.

Response: EPA will continue to encourage the City of Atlanta, the TMA (when it exists), and the developer to consider the kinds of programs, incentives, and design features suggested by EDF. However, EPA believes it is more appropriate that the City of Atlanta, the TMA, and the developer identify the most effective programs and detailed design features through evaluation of the data that will be collected as part of the monitoring requirements of the TCM, rather than prescribing them in the TCM.

33. Comment: “The choice of bridge design will have a major effect on the travel behavior in the area of Atlantic Steel and cannot be ignored in developing air quality agreements. The 17th Street bridge/interchange Concept Report, dated December 21, 1998, offers a preferred alternative that would extend the freeway into the city on both sides of the Interstate. This preferred alternative should be rejected as inappropriate for designation as a TCM. The facility should be redesigned to extend the city's arterial street grid over the freeway, using the bridge as a buffer to the freeway that now slashes the city in half. A lower level facility that would allow 17th Street to intersect with Spring Street on the east of Interstate-75 and that would connect with the street grid as close as possible on the west side of Interstate-75, without the added collector-distributor connections between 14th Street and the freeways north of 17th Street, would be less oriented towards high speed vehicle movement but would enhance pedestrian connectivity. The preferred alternative with a high signature bridge would create a dehumanized environment oriented mostly toward cars. With that design few would choose to walk between the West Peachtree Street/Art Center MARTA station and the Atlantic Steel site. A better alternative would be a more horizontal engineering structure, like that in Seattle's Freeway Park, reconnecting the east and west side neighborhoods with a decked structure over the freeway for a good portion of the distance between 14th and 17th Streets. This could include landscaping, space for market stalls or kiosks, sculptural elements, and elements that would humanize and energize this as a safe and inviting pedestrian environment, with insulation from freeway noise and pollution.”

Response: The 17th Street Concept Report has been revised since December 21, 1998, such that the preferred alternative for the 17th Street bridge now intersects with Spring Street on the east side of the interstate. As mentioned in the response to comment #22, the concept has also been revised to better balance the needs of cars, buses, bicycles, and pedestrians, to better integrate 17th Street into the urban fabric of Midtown, and to coordinate more closely with the vision for Midtown provided by the Midtown Alliance and “Blueprint Midtown.” Furthermore, the preferred alternative for the 17th Street bridge does not contain direct connections to the collector-distributor system between 14th Street and the freeways north of 17th Street. Although the preferred alternative does not envision the decked structure over the freeway suggested by EDF, the actual design of the 17th Street bridge has not been finalized. However, there is general agreement that the 17th Street bridge should be designed as a “gateway” structure into the heart of Downtown Atlanta, if possible. Regardless, qualified landscape architects will work to ensure that aesthetic values and overall compatibility with existing and future Midtown streetscapes are achieved in the course of final bridge and roadway design. In addition, EPA will continue to encourage GDOT to design the bridge to maximize pedestrian, bicycle, and transit-friendly elements, such as those suggested by EDF.

34. Comment: “We are also concerned that the traffic analysis of the Interchange/Bridge prepared for GDOT is based simply on ITE trip generation rates, reduced by a 10% internal capture and a 15% transit share. We are unsure what is the basis for these assumptions. The traffic analysis should not drive the bridge and interchange design, but alternative designs should be considered with appropriate sensitivity to stated assumptions about travel incentives, transit service levels, pedestrian friendliness, and other factors.”

Response: The traffic analysis of the 17th Street bridge and associated roadway improvements is based on ITE trip generation rates, and 1998 observed traffic counts in the study area, grown to the future analysis year, as described in response to comment #6. These assumptions were based on the professional judgment of GDOT, and they are consistent with the state of the practice for traffic analyses. Although the traffic analysis did drive much of the early concept for the 17th Street bridge and associated roadway improvements, as discussed in response to comment #22, GDOT has since revised the concept for several key intersections and surface streets to reduce: driving speeds, lane widths, the number of through and turning lanes, and turning radii of intersections. Details may be found in the 17th Street Concept Report and in the EA for the 17th Street extension and Atlantic Steel redevelopment, which are included in the docket for this rulemaking.

EPA is approving the Atlantic Steel TCM into the SIP under authority of section 110 of the CAA.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2000. 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).)

The Environmental Protection Agency Region 4 announces the deletion of the General Tire Landfill Superfund Site, Mayfield, Graves County, Kentucky, from the National Priorities List (NPL), Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and maintains the NPL as the list of these sites. EPA has determined that the site does not pose an imminent and substantial endangerment to the public health and welfare, and the environment. EPA will accept public comments for thirty days after publication of this notice in the Federal Register.

Section II of this notice describes the criteria for deleting sites from the NPL. Section III discusses the history of the General Tire Site and explains how the site meets the deletion criteria. Section V states EPA's action to delete the site from the NPL unless dissenting comments are received during the comment period.

Section 300.425(e) of the NCP provides that sites may be deleted from, or recategorized on the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the state, whether any of the following criteria has been met:

(i) Responsible parties or other persons have implemented all appropriate response action required;

(ii) All appropriate fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

In the case of the General Tire Site, EPA's remedial investigation and subsequent follow up groundwater studies conducted under state supervision, indicated that the site does not pose a significant threat to public health or the environment, and, therefore, active remedial measures are not appropriate. If new information becomes available which indicates a need for future action, EPA may initiate any remedial action necessary. In accordance with the NCP (40 CFR 300.425 (e)(3)), whenever there is a significant release from a site deleted from the NPL, the site shall be restored to the NPL without application of the Hazard Ranking System (HRS).

The following procedures were used for the intended deletion of the site: (1) All appropriate response under CERCLA has been implemented and no further action by EPA is appropriate; (2) the Commonwealth of Kentucky has concurred with the proposed deletion decision; (3) a notice has been published in the local newspaper and has been distributed to appropriate federal, state and local officials and other interested parties announcing the commencement of a 30-day public comment period on EPA's Direct Final Deletion; and, (4) all relevant documents have been made available for public review in the local site information repository. EPA is requesting only dissenting comments on the proposed action to delete.

For deletion of the release from the site, EPA's Regional Office will accept and evaluate public comments on EPA's Final Notice before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary, responding to each significant comment submitted during the public comment period. If no dissenting comments are received, no further activities will be implemented and this “direct final” action will become effective. Deletion of the site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. The NPL is designed primarily for informational purposes and to assist EPA management. As mentioned in Section II of this document, § 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions.

The following site summary provides EPA's rationale for the proposal to delete the General Tire Site from the NPL.

The General Tire Landfill is located east of State Highway 45, approximately two miles north of Mayfield, in Graves County, Kentucky. The landfill is situated adjacent to the General Tire manufacturing plant, between the Paducah/Louisville Railroad and Mayfield Creek.

The General Tire Plant started operation in the early 1960s and currently continues to operate. Throughout its operational history, the plant manufactured automobile, truck and tractor tires. The process requires large quantities of cooling water that is supplied by six water wells located next to the plant. These wells supply approximately 10 million gallons per day of water for use in the manufacturing process.

In 1970, the General Tire Plant received approval from the Commonwealth of Kentucky Department for Environmental Protection (KYDEP) for construction and operation of a landfill at the Mayfield site. Wastes from the plant, consisting of hazardous and non-hazardous wastes, were buried in a series of trenches approximately 1,300 feet long, 40 feet wide and 30 feet deep. The trenches were oriented in a north-south direction over an approximate 58 acre area. Some of the plant wastes placed in the landfill included carbon black, scrap rubber and tires, scrap hydraulic oil, lubricating oil, floor sweepings, rejected product material, trash, wood, paper packaging, and cements containing solvents.

In 1979, “hazardous wastes” defined by the Resource Conservation and Recovery Act were no longer disposed of in the landfill. However, General Tire continued to dispose of “non-hazardous” wastes from the plant until late 1984, under a permit issued by the KYDEP. KYDEP approved a closure plan for the landfill in 1985. The plan consisted of covering the trenches with two feet of clean soil, and monitoring the groundwater for a two year period after construction of the cover was properly completed. The landfill was covered and seeded in the fall of 1985.

After completing a preliminary assessment and site investigation, EPA proposed the landfill for inclusion on the National Priorities List (NPL) in June 1988. In February 1990, the site was added to the NPL.

In December 1989, General Tire and EPA entered into an Administrative Order by Consent for performance of a Remedial Investigation/Feasibility Study (RI/FS). The RI/FS was started in October 1990 and completed in May 1993.

After careful evaluation of all the exposure routes, estimated carcinogenic and non-carcinogenic health risks, and ecological impacts, EPA concluded that the landfill does not pose an unacceptable risk to the environment or to human health and welfare.

Operation of the plant wells has significantly limited the migration and potential human and environmental exposure to any contaminants that may have been released from the landfill into the groundwater. Since migration of contaminants through the groundwater is the primary mechanism by which the landfill can impact human health or the environment, EPA believes that the plant wells have provided a significant level of protection by capturing those contaminants released into the groundwater. The landfill does not pose a threat to human health or the environment provided the plant wells continue to operate. However, based on known characteristics of the aquifer, EPA is concerned that environmental conditions at the site may become worse if General Tire's plant wells cease operating. Consequently, an evaluation of the groundwater will be necessary in the future to determine the landfill's impact on the shallow aquifer without the influence of the plant wells. EPA deferred this site to the Commonwealth of Kentucky, Department for Environmental Protection for continued monitoring of the site and future evaluation of the groundwater upon shut down of the General Tire plant wells.

Based on the data collected in the Remedial Investigation and the health risks estimated in the Baseline Risk Assessment, EPA selected a no-further-action remedy in the Record of Decision issued on October 1, 1993.

The KYDEP did not concur with EPA's remedy selection, or subsequent request for NPL deletion. In the years following the ROD, KYDEP conducted a follow-up groundwater study which did not show any significant worsening conditions in the groundwater. Currently, KYDEP continues to monitor groundwater at the site through a groundwater monitoring plan performed by Continental General Tire Inc (the potentially responsible party). Based on the additional groundwater data collected, EPA requested KYDEP to reconsider its position on NPL deletion. On April 27, 2000, KYDEP agreed that the NPL listing could be removed.

The Environmental Protection Agency and the Kentucky Department for Environmental Protection agrees that no further CERCLA action is necessary and that the site does not pose a threat to human health and the environment. KYDEP will continue to monitor the groundwater, and in the event of a significant future release of contamination that may impact human health or the environment, EPA may initiate appropriate CERCLA actions in accordance with the NCP.

The Commonwealth of Kentucky, in a letter dated April 27, 2000, concurs with EPA that the criteria for deletion of the NPL listing have been met. Therefore, EPA is deleting the General Tire Landfill site from the NPL, effective on October 27, 2000. However, if EPA receives dissenting comments by September 28, 2000, EPA will publish a document that withdraws this action.

On May 24, 2000, we published a final rule in the Federal Register (65 FR 33616) that sets forth the methodologies and procedures to determine the Federal fiscal year allotments of Federal funds available to individual States, Commonwealth and Territories for the new State Children's Health Insurance Program established under title XXI of the Social Security Act. This document corrects the error made in this final rule.

On January 19, 1996, the tugboat Scandia, with the tank barge North Cape in tow, caught fire five miles off the coast of Rhode Island. Crewmembers could not control the fire and, without power, they were unable to prevent the barge carrying 4 million gallons of oil from grounding and spilling about a quarter of its contents into the coastal waters. The North Cape spill led Congress to add, by § 902 of the 1996 Coast Guard Authorization Act [Pub. L. 104-324] (the Authorization Act), a new subsection, (f), to 46 U.S.C. 4102, to permit the Secretary of Transportation—“in consultation with the Towing Safety Advisory Committee” (TSAC)—to require fire-suppression measures on all towing vessels. We published a notice of proposed rulemaking (NPRM) on safety of towing vessels and tank barges [CGD 97-064] [RIN 2115-AF53] on October 6, 1997 (62 FR 52057). Afterward, we divided the rulemaking to address fire-suppression systems and fire-protection measures separately. We issued an interim rule [USCG 1998-4445] [RIN 2115-AF66] on October 19, 1999 64 FR 56257), to implement certain fire-protection measures for towing vessels. We plan to issue a supplemental notice of proposed rulemaking (SNPRM) on fire-suppression systems and voyage planning for towing vessels [USCG 2000-6931] [RIN 2115-AF53] later this year.

Section 902 of the Authorization Act gave the Coast Guard the authority to require “the installation, maintenance, and use of a fire suppression system or other measures . . . on board towing vessels.” However, for vessels that tow non-self-propelled tank vessels, the Authorization Act did not just give the Coast Guard the authority; it mandated that the Coast Guard require these measures. The measures that the Coast Guard is requiring in this rule are based, in part, on recommendations from the TSAC.

The interim rule prescribed that most towing vessels be fitted with—

• General alarms,

• Fire-detection systems for engine rooms,

• Internal-communication systems, and

• Remote fuel shut-off valves.

Furthermore, these vessels must conduct fire-fighting drills and establish training requirements for their crews. The rule exempted towing vessels that engage only in assistance towing, pollution response, or fleeting.

Neither the interim rule nor this final rule implements any requirements for fixed fire-suppression systems on towing vessels. A separate rulemaking, entitled “Fire-Suppression Systems and Voyage Planning for Towing Vessels”, addresses those systems.

In the NPRM, we proposed a combination of early-warning fire-detection systems, semi-portable fire extinguishers, fixed or portable fire pumps, and training of crews as alternative means of fire protection. During the comment period for the NPRM, we received numerous comments critical of these alternative measures. Many of the commenters stated that the measures did not meet the intent of the Authorization Act, because they would not require total-flooding fire-extinguishing systems. Further, the commenters stated that the measures did not consider vessels' characteristics, methods of operation, and nature of service, nor did they differentiate between ocean-going tugboats and inland towboats. We carefully considered these comments and decided to implement the lower-cost, non-controversial measures in an interim rule, separate from any requirements for fixed fire-extinguishing systems. This final rule makes a few changes to the interim rule for the non-controversial measures, based on public comments, as discussed below. Again, all requirements for fixed fire-extinguishing systems are the subjects of a separate rulemaking; this will take the form of a SNPRM on fire-suppression systems and voyage planning for towing vessels, which we will publish later this year.

The Coast Guard received a total of 17 documents containing 95 comments to the public docket of the interim rule that precedes this final rule. The following paragraphs summarize the comments and explain the changes we have made to that interim rule.

Three comments asked that the rule change to provide specific details that explain which types of harbor tugs and similar tugs operating within limited geographic areas are exempted from its requirements. We considered these comments and decided to make no change in that respect. 46 CFR 27.100 already clearly explains the reach of this rule. Besides, 46 CFR 27.100(c) permits the owner or operator of any vessel to request an exemption from the local Captain of the Port (COTP). The local COTP has the most accurate view of local conditions, so he or she is better suited to making a fair determination of the safety of a particular vessel.

Eight comments provided arguments both pro and con on the need for a fixed fire-extinguishing system for the protection of towing vessels' engine rooms. This issue is the subject of a separate rulemaking, the SNPRM on fire-suppression systems mentioned twice earlier. These comments, too, have not resulted in any changes to this final rule.

Several comments expressed the opinion that requiring weekly tests of a general alarm is excessive, and that such tests should be a part of the monthly fire drills. We disagree. The general alarm is an emergency safety system; as such, it must be functional at all times. Weekly testing of the alarm is consistent with our rules for inspected vessels and provides a high degree of confidence that the alarm will operate when needed.

Numerous comments concerned § 27.210(f), which requires that the fire-detection system not be used for any other purpose. They stated that the rule should let the system be a part of the system for monitoring the engine room. We had received similar comments during the public comment period for the proposed rule. At that time, we had disagreed with the commenters. We had been concerned that the connection of non-emergency equipment to the fire-detection system could introduce a potential for spurious electrical faults that would decrease the reliability of the system. Because of this, the interim rule requires the fire-detection system to be approved by the Coast Guard or listed by an independent laboratory and not be part of any other system. Taking account of the added information received in response to the interim rule, we have re-considered our position on this issue.

The towing industry has informed us about systems for monitoring engine rooms and about their routine use. These systems, relied upon daily, ensure the operation of the vessel and its engines. They are therefore subject to enhanced maintenance and testing. If a spurious electrical fault were to occur in one, the operator would immediately be aware of it. If one became inoperable, prudent practice would dictate prompt repairs. Because of this, we hold the reliability of these systems adequate for their use in combination with fire-detection systems for engine rooms, as long as: (1) The equipment remains in good working order and (2) the fire detectors are approved for fire-protection service by an independent laboratory. Hence, we have framed the final rule to accept the continued use of existing fire-detection systems that are components of systems for monitoring engine rooms, provided that the detection systems also comply with 46 CFR 27.210(g).

Several other comments sought clarification of paragraph 46 CFR 27.210(d)(2), which requires that the control panel for the fire-detection system include a visible and audible alarm for each zone. The confusion arose over whether the paragraph requires both a separate visible alarm and a separate audible alarm for each zone. It was our intent to require a system that has a common audible alarm to notify the crew of any fire. If the system covers more than one zone, a series of indicator lights on the control panel will identify the zone of origin. This renders a separate audible alarm for each zone unnecessary. We agree that the wording of this requirement in the interim rule could have led to confusion. We have therefore changed the wording to preclude that.

Other comments sought clarification of the technical requirements of 46 CFR 27.210. We made no changes in response to these comments, which we summarize below:

46 CFR 27.210(e)—The requirement that the fire-detection system draw power from two sources. Several comments questioned the need for two separate sources of power. For reliability, such a system will have a backup source of power in case either the main generator fails or a break in the circuitry occurs. The system commonly achieves redundancy by switchover of the primary source to a small 12-volt battery located in the control panel. The comment observed that on a towing vessel the loss of primary power would be immediately noticed and corrected. We agree with this viewpoint; however, there may be instances when the vessel has primary power available to most parts of the vessel but when the branch of the electrical distribution system that supplies the alarm system is nonetheless unavailable. For such instances, it is necessary to provide an alternative supply of power from a battery to maintain detection capability.

46 CFR 27.210(g)—The requirement that the fire-detection system be certified to meet the rule by a professional engineer or a classification society. A number of comments questioned the reliance on an outside expert to certify the condition of the system. We called for this reliance to ensure that there is a thorough, knowledgeable, and professional review and inspection of the system. The Coast Guard does not routinely examine towing vessels. We feel that early warning of fire in the engine room is extremely important to the overall safety of such vessels. Because many such vessels already have installed systems, we decided to allow their continued use as long as they meet a minimum level of safety. This spares owners of vessels the expense of replacing their existing systems with new ones. Because we have decided to accept existing systems, we believe it essential that qualified persons evaluate the condition of the systems. Several comments insisted that marine electricians would be sufficiently competent to inspect and certify existing systems. We do not fully agree. We know of no training or certification for electricians that includes experience in the proper placement of fire detectors. Yet the installation of the detectors is crucial in the performance of the systems. For example, if the detectors are too close to ventilation outlets or too far beneath the overhead, they may never provide timely warning of fire. Because of the complexity of the guidelines for installing detectors, we have not weakened the requirement for certification.

46 CFR 27.210(d)(1)—The requirement for a power-available light. This part of the rule requires that a light on the control panel be illuminated whenever power is connected to the system. Some comments stated that the arrangement or function of this light needed explaining. We do not agree. The term “power-available light” is a common one, used throughout the fire-detection industry as well as elsewhere. It simply identifies a light on the control panel that indicates the presence of voltage at the point of connection to the system. We have not revised the wording of the rule.

Several comments maintained that we should eliminate the exemption for twin-screw vessels (with operating-station control for both engines) afforded in 46 CFR 27.215(b) and require internal-communication systems on all vessels. We require these systems in the interim rule to be consistent with existing rules for inspected vessels: We saw no reason to hold uninspected towing vessels to a higher standard than inspected ones. We still see none, and have not eliminated this exemption from the final rule.

Another comment urged us to require dedicated VHF radios for the internal-communication system. It argued that relying on the same radios used for day-to-day operation of the vessel would leave the availability and operability of the radios questionable. We do not agree. On the contrary, we expect radios used daily to be more likely to be fully charged and ready for use when needed.

A number of comments requested that we change the requirement for fuel shut-off valves set forth in 46 CFR 27.340(f). That requirement, derived from the interim rule, states that any fuel line subject to internal head pressure from the fuel in a tank must be provided with a remotely operable fuel shut-off valve. It was our intent to require a means to stop the main supply of fuel to the engine room during a fire, because our casualty data showed that failures of fuel lines and flexible hoses are among the leading causes of fires in engine rooms of towing vessels. Fuel leaking and spraying from gravity tanks significantly increases the magnitude of these fires and makes these fires almost impossible to extinguish without outside assistance. It was our further intent, therefore, to require a single shut-off valve located at the outlet of the day tank. The comments from the towing industry, however, pointed out that many towing vessels are configured with day tanks and multiple fuel tanks capable of pressurizing fuel lines by gravity flow, and thus would need multiple shut-off valves. They argued that there is no valid safety benefit to installing shut-off valves on all of these tanks. They reported not only that engineers often transfer fuel among tanks to adjust vessels' trim but that they transfer it manually with valves on fuel-transfer manifolds in the engine rooms. The valves open solely during transfers. The fuel ultimately enters a day tank, which then supplies the engines and generators. As written, the interim rule is interpreted by some to require a separate shut-off valve for each tank connected to the manifold. Our review of casualty reports showed that, while failure of fuel lines and fittings on diesel engines occurred in a significant number of cases, failure of piping connected directly to tanks and manifolds did not significantly contribute to the fire hazard. We conclude from the reports and the public comments that the measures required in the interim rule need not apply to all tanks. Only a fuel line directly supplying an engine (or generator) needs a remotely operable positive shut-off valve. We agree with the comments. We have therefore framed the final rule to clearly explain that we require a shut-off valve only on a line from the day tank, a storage tank, or a manifold that supplies fuel directly to an engine or generator. We expect you to install remote shut-off valves as follows:

• If you have a day tank supplying fuel, install the shut-off valve at the day tank;

• If you have a fuel-distribution manifold only (no day tank), install the shut-off valve in the single fuel-supply line after (downstream of) the manifold; or

• If you have a fuel tank directly supplying an engine or a generator, without the use of a day tank, a storage tank, or a fuel-distribution manifold, install the shut-off valve at the fuel tank.

One comment noted that a reader could misinterpret 46 CFR 27.340(d) to require the fitting of each fuel tank with a vent pipe connected to the highest point of the tank and venting on the weather deck. The commenter argued that this would prevent the operator of a towing vessel from leading a common vent pipe from two or more fuel tanks. This was not the intent. The individual vent pipes from several fuel tanks containing liquids in the same class of hazards may connect to a header venting on the weather deck, as long as the piping arrangements and diameters are adequate to prevent damage to the tanks from over- and under-pressurization. We have added a new sentence to this paragraph to clarify this.

Another comment insisted that subparagraphs 27.340(d)(2)(i) and 27.340(d)(2)(ii) fail to clarify which of their two standards for vent pipes applies, and suggested that we add the words “whichever is greater”. We do not agree. The two standards apply to two different situations. 46 CFR 27.340(d)(2)(i) contains the standard for a tank filled under gravity head, as from a marine fuel station with a dispensing nozzle. Section 27.340(d)(2)(ii) contains the standard for a tank filled with fuel pumped aboard (under pressure) through a connected length of fuel-transfer hose. The commenter also suggested that we adopt the rules of the American Bureau of Shipping (ABS) for sizing tank vents. We have not adopted these rules, as they exceed what we consider acceptable. Of course, an operator may choose to adopt the ABS rules or apply another higher standard.

A number of comments requested a reduction in the frequency of required training and drills. We disagree, for the reasons that follow. Commercial vessels, if they require fire drills at all, adhere to a monthly schedule. We have required such drills monthly to familiarize crewmembers with the hazards, and with the safety equipment installed, onboard their vessels. In the towing industry, it is not uncommon to have a high rate of crew transfers. Crewmembers may be aboard vessels just for brief periods, or may rotate assignments among several vessels. They must receive training and drills in fire safety fairly often.

We received comments that indicate some in the industry may have mis-interpreted the interim rule on training and drills. Our intent was never to require such formal fire-fighting training as would be necessary for licensing. The required monthly training is for response to emergencies that might occur aboard crewmembers' particular vessels. The training should familiarize them with the safety equipment installed aboard their vessels, and with the locations of the vessels' controls for fuel and ventilation systems. It should also provide instructions on how to operate all of the installed fire-fighting equipment.

Another group of comments noted that monthly drills would be pointlessly burdensome to the industry if they entailed the discharge of portable and semi-portable fire extinguishers. This was not our intent. 46 CFR 27.355(c)(2) specifies that the drills must include “breaking out and using emergency equipment.” It aims at crewmembers” mustering the equipment and bringing it to the site of the drill. We do not require the actual release of extinguishing agents during the drills: The drill instructor can demonstrate the proper operation of the equipment without discharging the extinguishers. The drills should familiarize the crewmembers with the location of the emergency equipment and the difficulties that they may encounter in employing it.

One commenter made the point that not all crew transfers take place while the vessel is docked. The requirement in 46 CFR 27.355(d) to provide safety orientation to new crewmembers “before the vessel gets underway” therefore cannot be met in all cases. We agree with this comment and have framed the paragraph to require, instead, the safety orientation for new crewmembers within 24 hours.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget (OMB) under that Order.

A Regulatory Assessment under paragraph 10e of the regulatory policies and procedures of DOT is available in the docket for inspection or copying where indicated under ADDRESSES.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) [Pub L. 104-4, 109 Stat. 48] requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. Under sections 202 and 205 of the UMRA, the Coast Guard generally must prepare a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or added enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes any of those entities to spend, in the aggregate, $100 million or more in any one year, an analysis under the UMRA is necessary. The total burden of Federal mandates imposed by this final rule will not result in such an expenditure. Therefore, sections 202 and 205 of the UMRA do not apply.

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

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

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

Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Coast Guard considers the economic impact on small entities of each rule for which a general notice of proposed rulemaking is required. “Small Entities” include 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.

An assessment of this final rule's impacts on small entities appears in the regulatory assessment. It is available in the docket for inspection or copying where indicated under ADDRESSES.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please call Mr. Randall Eberly, telephone 202-267-1861.

The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about enforcement by Federal agencies. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on enforcement by the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This final rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.]. It does require standard wording to appear on each general alarm bell and flashing red light. This wording is to inform crewmembers that when the general alarm bell sounds, or the red light flashes, they should proceed to their assigned stations. This labeling is exempt from the guidelines of OMB for collection and posting of information since it furnishes exact wording.

We analyzed this final rule under Executive Order 13132, Federalism. It is well-settled that States are precluded from regulating in the categories reserved for regulation by the Coast Guard. [United States v. Locke, 120 S. Ct. 1135 (March 6, 2000).] It is also well-settled that, in the case of uninspected towing vessels, if the Coast Guard promulgates rules dealing with design, construction, equipment, or operation, State regulation in those areas is preempted. [Kelly v. Washington, 302 U.S. 1 (1937); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1979).] The statutory authorities under which we promulgate this rule mandate our action for inspected towing vessels and for any towing vessels towing non-self-propelled tank vessels [46 U.S.C. 3306(a)(3) and 4102(f)(2)], and give us discretionary authority for all other towing vessels [46 U.S.C. 4102(f)(1)]. In any event, the preemptive impact of the Coast Guard's action in this rulemaking is the same. This entire rule falls into the previously-mentioned categories of rules. Because States are precluded from regulating within these categories, preemption is not an issue under Executive Order 13132. Accordingly, the Coast Guard regards the Federalism implications of this rule as minimal.

The Coast Guard considered the environmental impact of this final rule and concluded that under Figure 2-1, paragraphs (34)(c) and (d) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A “Determination of Categorical Exclusion” is available in the docket for inspection or copying where indicated under ADDRESSES.

On March 29, 2000, the Commission adopted an Order in the Truth-in Billing and Billing Format proceeding that granted, in part, petitions for reconsideration of the requirements that telephone bills highlight new service providers and prominently display inquiry contact numbers. The Order modified the Truth-in-Billing and Billing Format rules to ensure that telephone bills contain information necessary for consumers to determine the validity of charges assessed on the bills and to combat telecommunications fraud. In the Order, the Commission also denied all other petitions seeking reconsideration, but provided clarification with respect to certain issues. A summary of the Order was published in the Federal Register. See 65 FR 43251 (July 13, 2000). The supplementary information in the summary was corrected in a document published in the Federal Register. See 65 FR 45929 (July 26, 2000). The information collections were approved by OMB on July 21, 2000. See OMB No. 3060-0854.