This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR 3015, Subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments and consult with them as they develop and carry out those policy actions. The Food and Nutrition Service (FNS) has considered the impact of this rule which requires mandatory implementation of Electronic Benefit Transfer (EBT) systems to deliver food stamp benefits in accordance with non-discretionary requirements set forth in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). In addition, FNS added the two discretionary cost neutrality provisions directly in response to State concerns. FNS is not aware of any case where any of these provisions would in fact preempt State law and no comments were made to that effect. Prior to drafting this final rule, we received input from State agencies at various times. Since the Food Stamp Program (FSP) is a State administered, federally funded program, our national headquarters staff and regional offices have informal and formal discussions with State and local officials on an ongoing basis regarding EBT implementation issues. This arrangement allows State agencies to provide feed back that form the basis for many discretionary decisions in this and other FSP rules. In addition, we sent representatives to regional, national, and professional conferences to discuss our issues and receive feedback on EBT implementation timeframes, cost-neutrality issues and other more general EBT concerns. Lastly, the comments on the proposed rule from State officials were carefully considered in the drafting of this final rule.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Shirley R. Watkins, Under Secretary for Food, Nutrition and Consumer Services, has certified that this rule will not have a significant economic impact on a substantial number of small entities. State and local welfare agencies will be the most affected to the extent that they administer the Food Stamp Program.

This rule does not contain additional reporting or recordkeeping requirements other than those that have been previously approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 and assigned OMB control numbers 0584-0083 and 0505-0008.

This rule has been reviewed under Executive Order 12778, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the DATES paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program (FSP), the administrative procedures are as follows: (1) For Program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(11) and 7 CFR 273.15; (2) for State agencies—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-quality control (QC) liabilities) or 7 CFR Part 283 (for rules related to QC liabilities); (3) for Program retailers and wholesalers—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Food and Nutrition Service (FNS) generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Proposed rules were published in the Federal Register on May 27, 1999 at 64 FR 28763 to implement the provisions of section 825 of the PRWORA (Pub. L. 104-193) which amended Section 7 of the Food Stamp Act of 1977, as amended (7 U.S.C. 2016) (the FSA). Comments on the proposed rule were solicited through July 26, 1999. This final action takes the comments received into account. Readers are referred to the proposed regulation for a more complete understanding of this final action.

Eighteen comment letters were received in response to the proposed rule. Individual comments were received from 8 State agencies. Of the remaining letters, 2 were from retailer associations, 2 were from banking associations, 2 were from Public Interest Groups, 1 was from an EBT processor, 1 was from an EBT industry trade group, 1 was from a planning company, and 1 was from an alliance of States, networks, contractors, financial institutions and retailers.

In general, the commenters supported EBT and the Department's efforts to encourage implementation. Various provisions of this rule: mandate EBT systems for food stamps; allow for implementation of off-line EBT systems; relax cost-neutrality requirements; allow collection of EBT replacement card fees from client household benefit accounts; and identify operational limitations for including client photographs on EBT cards. The specific provisions are discussed below.

The proposed rule would mandate that each State agency fully implement EBT statewide for issuance of food stamp benefits no later than October 1, 2002, unless the Secretary provided a waiver because a State agency faced unusual barriers to implementing an EBT system. Each State agency was encouraged to implement an EBT system as soon as practicable. Although a majority of the commenters supported the EBT mandate in general, several had serious concerns with this requirement.

Three comments reflected a concern that the lack of competition in the current EBT environment will impede full implementation efforts. Three commenters expressed concern that the Department's interpretation of the legislation was too stringent in requiring that State agencies be fully implemented statewide by October 1, 2002. They felt that if a State agency is actively moving toward statewide implementation by the deadline, the regulatory requirement should be satisfied. One commenter suggested allowing an extra six months for full implementation, while another suggested short-term waivers to ensure that systems will be ready for reliable operation within a few months after the October 1, 2002 date. One commenter felt that there should be a prohibition on implementations and system changes between October 1999 and the first quarter of 2000 because of Y2K considerations.

The Department was impressed by the show of concern from State agencies and other interested parties about the requirement for full implementation by October 1, 2002. However, Congress was clear in its intent that State agencies must implement EBT for food stamps statewide by the deadline of October 1, 2002, unless they receive a waiver granted by the Secretary because of unusual barriers to full implementation.

Three commenters felt that the rule should specify what will qualify as “unusual barriers” to implementation, and thus warrant a waiver. Without knowing what, if any, obstacles State agencies might face, the Department is not able to specify what kinds of problems would justify a waiver from the Secretary. The Department will need to evaluate any waiver requests submitted on an individual basis. However, the Department does not foresee any obstacles that cannot be overcome in order to meet the requirements that State agencies implement EBT systems statewide by October 1, 2002.

The preamble of the proposed rule also stated that any State agency not granted a waiver and not having fully implemented EBT statewide by October 1, 2002, will be out of compliance with these rules and may be subject to disallowance of administrative funds pursuant to the provisions of 7 CFR 276.4. Two commenters requested clarification with respect to penalties that would result if States had not implemented EBT by the deadline. We believe that the regulations, as cited above, provide the State agencies sufficient detail on the disallowance of administrative funds to impart the importance of complying with this requirement.

The proposed regulation would implement the statutory amendment which removed the prohibition against State agencies implementing off-line EBT systems. A majority of the comments on this provision support the change to allow off-line systems because it provides State agencies greater flexibility to determine the kind of system suitable for their own needs. However, one commenter recommended that off-line technologies be implemented transitionally to protect existing investments by States and retailers in on-line systems. Another felt that, while off-line systems can make the integration of cash and non-cash benefits more efficient and convenient for recipients, costs must come down before the technology can be widely implemented. Another raised the concern that retailers should not have to bear the cost of the new technology. By allowing off-line system implementation, the Department is offering State agencies more flexibility but is not endorsing off-line technology over magnetic stripe on-line technology. We recognize that the cost implications for State agencies and for retailers will largely drive the degree to which this technology is adopted over time.

The proposed rule also defines an off-line EBT system as a benefit delivery system in which a benefit allotment can be stored on a card and used to purchase authorized items at a point-of-sale terminal without real-time authorization from a central processor. One commenter suggested modifying the definition of off-line systems to “* * * a benefit delivery system in which a benefit allotment can be stored on a card or in a card access device. * * *” We are incorporating the language of the suggested definition into the regulation to convey that in some cases with an off-line system, benefits must be downloaded onto a card at the point-of-sale terminal or some other card access device.

Another commenter wanted us to specify that off-line systems not be permitted to retain information on recipients, including food choices, for privacy reasons. Off-line systems are held to the same privacy requirements as on-line systems as found in current Food Stamp regulations at 7 CFR 274.12(e)(1)(ix), (redesignated by this publication as 7 CFR 274.12(f)(1)(ix)). This provision states that State agencies shall ensure the privacy of household data and provide benefit and data security. Retailers, for instance, are not permitted to store any information on EBT cards or accounts, on-line or off-line. Because of the existing protections, we have not made any further changes to the rule with regard to this issue.

The rule did not propose standards specific to off-line systems but did solicit comments from the public to provide input into our decision regarding what standards we should propose in the future. One commenter disagreed with this approach and suggested that national uniform standards must be developed before off-line systems can be implemented. The Department has already tested off-line technology for EBT and sees no reason not to allow State agencies to move in this direction if they choose. However, we understand the limitations of not having standards in place and will continue to work with the State agencies and other interested parties to keep apprised of advances being made toward standards in the off-line industry as it evolves.

This rule implements two discretionary changes (offers option of a national issuance cost cap and allows for prospective certification of EBT systems), and one non-discretionary change (removes requirement that EBT systems be cost neutral in any one year) to the EBT cost neutrality requirements of 7 CFR 274.12(c). Most of the comments that we received on the proposed rule were in response to the cost neutrality section. In general, the comments reflect that cost neutrality continues to be a source of concern and frustration for State agencies and other stakeholders, even as we strive to make the requirements less burdensome.

Three of the commenters acknowledged general support of these provisions because they offer State agencies more flexibility to determine and track cost neutrality; however, a majority of the commenters expressed the belief that the Department needs to go further to reduce the impact of cost neutrality requirements. Four commenters recommend exempting certain EBT activities and associated costs from the cost neutrality determination, such as farmers' market participation in the FSP. Similarly, two commenters complained that the cost cap does not take into consideration certain State costs which are not related to coupon issuance but are required for EBT or by FSP regulations, e.g., an annual Statement of Auditing Standards (SAS) 70 audit of EBT systems. Three commenters said that FNS should take into consideration the increased costs to operate EBT and the States' limited financial resources. Four commenters mentioned that the lack of EBT competition has meant higher costs; therefore, further relaxation of cost neutrality requirements are needed. One commenter suggests that State agencies with smaller caseloads need flexibility in choosing a contractor, because it is harder for them to be cost neutral.

The Department has similar concerns about the costs related to EBT and how they impact on a State's cost neutrality. For instance, the Department has decided to exempt all SAS 70 audit costs from State agencies' cost neutrality determinations, and we will continue to examine activities and costs with an eye to whether they should be part of EBT cost neutrality consideration. However, we believe that, by implementing the changes in this rule, a majority of the concerns about the implications of Federal cost neutrality can be overcome.

Two comments specifically welcomed the non-discretionary change to remove the annual cost neutrality assessment of EBT compared to paper systems. However, one comment letter reflected some misunderstanding by questioning whether there is any change to the time periods for calculating cost neutrality under an EBT contract since there are so few billable case months in the first year or so of a first generation EBT system. With the legislative removal of the annual cost neutrality requirement, State agencies will now assess the cost neutrality of the entire contract period, not year to year. This provision should greatly reduce the likelihood that State agencies are held responsible for costs exceeding the cost cap, because they are able to spread them out over the full contract period.

The national cap is a case-month issuance amount calculated by FNS to be $2.42 for fiscal year 2000. The amount is based on nationwide State and Federal coupon issuance costs as validated by FNS. State agencies may opt for this method for determining the cost neutrality of their EBT systems rather than derive their own coupon issuance cost cap. One commenter generally supported the provision. Another commenter suggested that the national cap be lowered or eliminated if it becomes apparent that EBT contractors are tying project bids to the cap rather than competing aggressively. This also included the suggestion of not publishing the national cap for this reason. The Department does not foresee this being a problem because each State agency has its own cost constraints to doing EBT that may in fact be lower than the national cost cap. Contractors will have to be sensitive to how much the individual States can spend on an EBT system when submitting bid proposals, regardless of the national cost cap.

Only one commenter reacted specifically to the proposal on prospective certification. The commenter suggested that FNS deny prospective certification to State agencies with contracts containing troublesome provisions such as a contractor's ability to increase unit costs if caseloads fall below expectations but not reducing those unit costs in the event a recession or other event causes caseloads to rise. The Department agrees that these contract provisions can sometimes be questionable; however, the State agency would have to take such contractual impacts into account when submitting the prospective analysis for FNS approval.

Three comments requested clarification on how the proposed cost neutrality changes will impact on a re-bid contract. The Department does not foresee making any distinction between first time contracts and re-bid contracts when doing cost neutrality assessments. In both cases, the State agency will choose to either: (1) calculate their own State cost cap which is based on individual States' statewide coupon issuance costs, multiplied by the percentage of Federal financial participation, plus Federal only coupon issuance costs, and then validated by FNS; or (2) use the national cap which is calculated by FNS. The State agency then projects the costs of the EBT system for the life of the system; i.e., the contract period. If the State agency can demonstrate up front that the system will be cost neutral, no further cost assessment of the project during the contract period is necessary, unless the State agency makes significant changes to the system which increase contract or other costs enough to warrant a reassessment.

Clarification was requested by several other commenters. One commenter wanted to know if validated cost caps would have to be recalculated. If the State agency already has a validated cost cap, it may use that cap or switch to the national cap, whichever it wants to use. Another commenter wanted to be able to exclude residual coupon costs from assessment when the State agency is operating statewide. In fact, this is already permitted. State agencies may request that residual coupon costs be taken into consideration as they are rolling out an EBT system, but there are no residual coupon costs once the EBT system is implemented statewide.

Another commenter wanted a more equitable method of determining the cost of off-line systems since off-line systems suffer under current requirements. The Department does not intend to change cost neutrality requirements to fit off-line systems. We recognize that those systems still tend to cost more than on-line systems, but this will likely change if off-line technology advances in the market place.

Two commenters specifically requested clarification of the distinction between direct and indirect costs. After review of the comments, we have determined that the level of detail on direct and indirect costs in the proposed rule, as well as much of the detail on process and procedures related to calculating cost neutrality, is more appropriately handled through guidance to the State agencies. FNS is currently developing the cost neutrality guidance for distribution to the State agencies shortly after publication of this rule. We have revised the cost neutrality section of the final regulation extensively to reflect this.

As discussed in the preamble of the proposed rule, PRWORA requires, to the extent practicable, the establishment of system approval standards for measures that permit a system to differentiate items of food that may be bought using food stamps from items that may not be bought using food stamps. This resulted in a report to Congress in August of 1998 explaining that we would have to require scanners at all authorized food stamp retailers to accomplish this and, while it is technically feasible, it is cost prohibitive to do so at this time. No regulatory change was proposed. We received seven comments supporting this position.

The proposed rule would provide State agencies with the option to collect a charge for replacement of an EBT card by reducing the monthly allotment of the household. We received five comments generally supporting this provision. Two commenters suggested that we allow collection of future months' benefits for replacement cards. The Department does not see why it should be necessary for a State agency to collect a replacement card fee from a household's future months' benefits. There is currently no prohibition against waiting until funds are available in the benefit account before collecting the fee for replacing the card.

One commenter felt that, since replacing cards is an administrative function, this should not be considered program income. All administrative functions are shared costs and, therefore, if the State agency is being reimbursed for a cost that the Department has already shared in through payment to the EBT contractor, the fee collected must be treated as program income and shared with the Department. Another commenter suggested that State agencies should offer one free replacement per year similar to the credit card industry. State agencies have the flexibility to implement a provision with this kind of leniency if they wish, but the Department will not mandate it.

One commenter had several suggestions to restrict the provision in ways to further protect food stamp households. One point was that, in order to be in compliance with the Americans with Disabilities Act of 1990, as amended (ADA), State agencies should not charge fees to clients with disabilities who frequently request replacement cards, because this is an indication that the client needs better training or help obtaining an authorized representative. It was further recommended that State agencies be required to waive the replacement fee if a client shows good cause.

The Department shares the commenter's concerns for recipients that experience difficulties keeping up with their EBT cards because of disabilities or those that can otherwise show good cause reasons for requesting a replacement card. Therefore, we strongly urge State agencies to consider the circumstances surrounding the recipients' need for a replacement card. Furthermore, we recommend that each State agency develop their own good cause policy for card replacement fees. Such policies would allow free replacement cards in instances of fires or other household emergencies, robbery or other crimes, and for recipients with disabilities that significantly impair their ability to secure the card. We have added regulatory language to emphasize these concerns.

It should be noted, however, that EBT card replacement is significantly different from replacement of coupons lost as a result of household emergencies or mail theft. When coupons are replaced, the actual benefits which were lost are replaced. When a household reports an EBT card lost or stolen, a hold is placed on the benefits remaining on that card, thereby protecting the household from unauthorized access to those benefits. When the card is replaced, the household will have access to the benefits that were on the card at the time it was reported lost or stolen.

Another suggestion was to establish a cap on the fee amount which would be announced annually and for FNS to refuse to grant training waivers ( i.e., allow States to mail EBT training to food stamp households rather than conduct hands-on sessions) to State agencies that charge a fee. The Department does not believe that these recommendations are necessary or required under the law. Therefore, we are not changing the regulatory language further in response to this comment. However, FNS will continue to review State agencies' plans for replacement card fee collection to ensure that households are not being charged exorbitant fees and are not being treated unfairly.

The proposed regulation specifies that State agencies may require that EBT cards contain a photograph of one or more members of a household but that the State agency must establish procedures to ensure that any other appropriate member of the household or any authorized representative of the household may utilize the EBT card if a photo is used. Four commenters generally supported the provision to use a photo on the card at State agency option. One comment specifically supported the Department's concern that all eligible household members must still be able to use the card. One commenter remarked that putting a photo on the card may reduce card replacements and selling of cards to non-beneficiaries and that any State doing so would need to have uniform procedures in place as part of their EBT program.

One commenter suggested that State agencies be required to place photos on the EBT card similar to how photos appear on credit cards so as not to make it obvious that a client is using a food stamp card. The Department does not intend to dictate how the photo should be placed on the EBT card.

Another commenter suggested that placing a photo on the card will create confusion for retailers and shift burden of policing the program to the stores. The Department has no intention of shifting the burden of monitoring the compliance of food stamp program recipients to the retail community. That is why the regulation is explicit in requiring State agencies to have a plan in place to ensure that all appropriate household members or authorized representatives can access benefits from the account as necessary. This plan might include retailer training to ensure that they understand someone other than the client pictured on the card may be entitled to use the card.

In the preamble of the proposed rule we discussed the anti-tying provision in PRWORA and the Department's response to it. To summarize, after consulting with the Federal Reserve System Board of Governors, the Department learned that anti-tying prevents the conditioning of any service on the purchase of another service or product. Since EBT is non-conditioned and, therefore, must be offered to retailers at no cost, the Federal Reserve agrees that the existing anti-tying laws are not relevant in the EBT environment. A majority of the commenters to this section agreed with the Department's position.

Two commenters did not agree and felt that USDA needs to do more to find a means to implement the intent of section 825 pertaining to anti-tying for the sake of promoting competition for Point of Sale (POS) services. They suggest that the Department use its expertise to ensure maximum competition and that perhaps prohibiting EBT contractors from offering commercial equipment in the States where they hold contracts is a cost effective and a pro-competitive approach. The Department has no evidence that this is a problem in the current EBT environment, a position which is supported by the Federal Reserve Board of Governors, as well as a majority of the commenters. However, we will continue to look at this issue to determine if further action may be necessary in the future.

The preamble language in the proposed rule spoke to the sense of Congress that State agencies should operate their EBT systems in a manner that makes them compatible with one another. It further went on to say that, since current rules already require system compatibility, no regulatory change was necessary. Several commenters wanted us to interpret the term “system compatibility” to be synonymous with system interoperability and took this opportunity to express their support of system interoperability; i.e., the ability for food stamp households in one State to use their EBT benefits in another State.

Three comments say we must achieve or require interoperability. Two other commenters want the Department to require interoperability and to specify who pays for it. One commenter supports interoperability and believes the Department should pay for it. Another three commenters merely state their support of interoperability while one other noted that without interoperability, cash-out should be allowed when recipients move from State to State. Interoperability legislation has now been passed by Congress and the Department published an interim rule on interoperability in the Federal Register August 15, 2000 at 65 FR 49719, entitled Food Stamp Program: EBT Systems Interoperability and Portability.

Three commenters expressed concern about transaction processing standards being inconsistent with commercial standards. The Department continues to work with State agencies, EBT processors, and other interested parties through forums like the EBT Industry Council, a subgroup of the Electronic Funds Transfer Association (EFTA), and the National Automated Clearing House Association (NACHA) to see if better standards for transaction processing can be developed. Under current regulations at 7 CFR 273.12(h), State agencies do have the option to request prior written approval from FNS to use the prevailing regional industry standards rather than the standards specified in this section. One commenter expressed concern that customer service and help line performance standards are also inconsistent with commercial standards. FNS does not prescribe standards in these areas, giving State agencies the flexibility to set their own requirements in individual contracts for EBT services.

One commenter requested FNS consider reviewing the pay-phone access issue and adjustments with an eye toward system compatibility. Another comment said that we need to ensure that other programs like the State food stamp programs can be added to existing systems in a cost effective manner. A final comment suggested that nationwide system compatibility at all levels would greatly enhance EBT systems. We appreciate these broader comments but felt they did not fit within the scope of this rule. The Department will, however, continue to look at how system compatibility can be enhanced with the ongoing evolution of EBT.

As stated in the preamble of the proposed regulation, Section 907 of the PRWORA amends Section 904 of the Electronic Funds Transfer Act, commonly known as Regulation E, to exempt from coverage government EBT accounts held for recipients of State-administered needs-tested assistance programs, including the FSP. Because this provision does not amend the FSA, we did not propose changes to our current regulations. We received only two comments on this issue. One commenter supported FNS's position; the other believed we must reserve further action on this issue until the effects of abrogating Reg E are clear.

This rule is effective November 3, 2000. State agencies may implement the provisions anytime after the effective date. However, EBT systems must be in place statewide no later than October 1, 2002, unless the State is granted a waiver by the Secretary of Agriculture.

Iroquois Gas Transmission System, L.P. (Iroquois) and Michigan Gas Storage Company (Michigan) filed requests for clarification or rehearing of Order No. 587-L.  1 Order No. 587-L established November 1, 2000 as the date by which pipelines are required to implement section 284.12(c)(2)(ii) of the Commission's regulations requiring pipelines to implement imbalance netting and trading on their systems. 2 Pipelines are required to file tariff sheets to implement imbalance trading in sufficient time for the tariff changes to become effective November 1, 2000.

Iroquois and Michigan request clarification that pipelines on which shippers do not incur imbalances and are not subject to imbalance penalties are not required to implement imbalance trading on their systems. Iroquois and Michigan state that, in Order No. 637-A, 3 the Commission determined that pipelines without imbalance penalties would not be required to offer imbalance management services, and contend that the same rationale should apply to imbalance trading.

The Commission agrees that pipelines on which shippers do not incur imbalances and are not subject to imbalance penalties need not implement imbalance trading on their systems. The purpose of requiring imbalance trading was to establish a mechanism by which shippers can avoid imbalance charges. If shippers cannot incur imbalances, then shippers do not need to trade imbalances.

However, the Commission cannot make a determination in a generic rulemaking proceeding as to whether the circumstances on an individual pipeline permit an exemption from the requirement to provide imbalance trading. Shippers on the individual systems should be given the opportunity to respond to any request for such an exemption. Accordingly, pipelines that seek an exemption from the imbalance trading requirement must file within 15 days of this order showing why they should not be required to implement imbalance trading on their systems.

(A) The requests for clarification are granted, in part, as discussed in the body of the order.

(B) Pipelines seeking an exemption from the imbalance trading requirement are required to file within 15 days of the order to show why they should not be required to implement imbalance trading.

The Transportation Equity Act for the 21st Century (TEA 21), H.R. 2400, Pub. Law 105-178, was signed into law on June 9, 1998. On July 22, 1998, the TEA 21 Restoration Act (the Act), Pub. Law 105-206, was enacted to restore provisions that had been agreed to by the conferees on TEA 21, but were not included in the TEA 21 conference report. Section 1406 of the Act amended chapter 1 of title 23, United States Code (U.S.C.), by adding section 164, which established a program to transfer a percentage of a State's Federal-aid highway construction funds to the State's apportionment under section 402 of Title 23 of the United States Code, if the State fails to enact and enforce a conforming “repeat intoxicated driver” law that provides for certain specified minimum penalties for persons who have been convicted of driving while intoxicated or under the influence upon their second and subsequent convictions.

In accordance with section 164, these funds are to be used for alcohol-impaired driving countermeasures or the enforcement of driving while intoxicated (DWI) laws, or States may elect instead to use all or a portion of the funds for hazard elimination activities, under 23 U.S.C. section 152.

Injuries caused by motor vehicle traffic crashes are the leading cause of death in America for people aged 5 to 29. Each year, traffic crashes in the United States claim approximately 41,000 lives and cost Americans an estimated $150 billion, including $19 billion in medical and emergency expenses, $42 billion in lost productivity, $52 billion in property damage, and $37 billion in other crash-related costs. In 1999, alcohol was involved in approximately 38 percent of fatal traffic crashes. Every 33 minutes, someone in this country dies in an alcohol-related crash. Impaired driving is the most frequently committed violent crime in America.

State laws that are directed to individuals who have been convicted more than once of driving while intoxicated or driving under the influence are critical tools in the fight against impaired driving. To encourage States to enact and enforce effective impaired driving laws, Congress has created a number of different programs. Under the section 410 program (23 U.S.C. 410), and its predecessor the section 408 program (23 U.S.C. 408), for example, States could qualify for incentive grant funds if they adopted and implemented certain specified laws and programs designed to deter impaired driving. Some of these laws and programs were directed specifically toward repeat impaired driving offenders.

For example, prior to the enactment of TEA 21, to qualify for an incentive grant under the section 410 program, a State was required to meet five out of seven basic grant criteria that were specified in the Act and the implementing regulation. The criteria included, among others, an expedited driver license suspension system, which required a mandatory minimum one-year license suspension for repeat offenders, and a mandatory minimum sentence of imprisonment or community service for individuals convicted of driving while intoxicated more than once in any five-year period.

States that were eligible for a basic section 410 grant could qualify also for additional grant funds by meeting supplemental grant criteria, such as the suspension of registration and return of license plate program. States could demonstrate compliance with this program by showing that they provided for the impoundment, immobilization or confiscation of an offender's motor vehicles.

TEA 21 changed the section 410 program and, specifically, the section 410 criteria that were directed toward repeat offenders. The conferees to that legislation had intended to create a new repeat intoxicated driver transfer program to encourage States to enact repeat intoxicated driver laws, but this new program was inadvertently omitted from the TEA 21 conference report. The program was included instead in the TEA 21 Restoration Act, which was signed into law on July 22, 1998.

Section 164 provides that, on October 1 of each year, the Secretary must transfer a portion of a State's Federal-aid highway construction funds apportioned under sections 104(b)(1), (3), and (4) of title 23 of the United States Code, for the National Highway System, Surface Transportation Program and Interstate System, to the State's apportionment under section 402 of that title, if the State fails to enact and enforce a conforming “repeat intoxicated driver” law. If a State does not meet the statutory requirements on October 1, 2000 or October 1, 2001, an amount equal to one and one-half percent of the funds apportioned to the State will be transferred. If a State does not meet the statutory requirements on October 1, 2002, or on October 1 of any subsequent year, an amount equal to three percent of the funds apportioned to the State will be transferred.

To avoid the transfer of funds, a State must enact and enforce a law that establishes, at a minimum, certain specified penalties for second and subsequent convictions for driving while intoxicated or under the influence. These penalties include: a one-year driver's license suspension; the impoundment or immobilization of, or the installation of an ignition interlock system on, the repeat intoxicated driver's motor vehicles; assessment of the repeat intoxicated driver's degree of alcohol abuse, and treatment as appropriate; and the sentencing of the repeat intoxicated driver to a minimum number of days of imprisonment or community service.

On October 19, 1998, NHTSA and the FHWA published an interim final rule in the Federal Register to implement the section 164 program (63 FR 55798). The interim final rule provided that, to avoid the transfer of funds, a State must have a law that has been enacted and made effective, and the State must be actively enforcing the law. In addition, the law must meet certain requirements.

The interim final rule provided that, to avoid a transfer of funds, a State must meet the following requirements:

1. A minimum one-year license suspension. The State's law must impose a mandatory minimum one-year driver's license suspension or revocation on all repeat intoxicated drivers. Accordingly, during the one-year term, the offender cannot be eligible for any driving privileges, such as a restricted or hardship license.

2. Impoundment or immobilization of, or the installation of an ignition interlock system on, motor vehicles. The State's law must require the impoundment or immobilization of, or the installation of an ignition interlock on, all motor vehicles owned by the repeat intoxicated offender. To comply with this criterion, the State law must require that the impoundment or immobilization be imposed during the one-year suspension term, or that the ignition interlock system be installed at the conclusion of the suspension period.

3. An assessment of their degree of alcohol abuse, and treatment as appropriate. To avoid the transfer of funds, the State's law must require that all repeat intoxicated drivers undergo an assessment of their degree of alcohol abuse and the law must authorize the imposition of treatment as appropriate.

4. Mandatory minimum sentence. The State's law must impose a mandatory minimum sentence on all repeat intoxicated drivers. For a second offense, the law must provide for a mandatory minimum sentence of not less than five days of imprisonment or 30 days of community service. For a third or subsequent offense, the law must provide for a mandatory minimum sentence of not less than ten days of imprisonment or 60 days of community service.

A more detailed discussion of the four elements described above is contained in the interim final rule (63 FR 55798-800).

Section 164 provides that nonconforming States will be subject to the transfer of funds beginning in fiscal year 2001. The interim final rule provides that, to avoid the transfer, each State must submit a certification by an appropriate State official that the State has enacted and is enforcing a repeat intoxicated driver law that conforms to 23 U.S.C. 164 and section 1275 of this part. A more detailed discussion regarding the certifications is contained in the interim final rule (63 FR 55800).

Section 164 provides that a State must not only enact a conforming law, but must also enforce the law. In the interim final rule, the agencies encouraged the States to enforce their repeat intoxicated driver laws rigorously. In particular, the agencies recommended that States incorporate into their enforcement efforts activities designed to inform law enforcement officers, prosecutors, members of the judiciary and the public about all aspects of their repeat intoxicated driver laws. States should also take steps to integrate their repeat intoxicated driver enforcement efforts into their enforcement of other impaired driving laws.

To demonstrate that they are enforcing their laws under the regulations, the interim rule indicated that States are required to submit a certification that they are enforcing their laws.

The interim final rule provided that, for each fiscal year, beginning with FY 2001, NHTSA and the FHWA will notify States of their compliance or noncompliance with section 164, based on a review of certifications received. If, by June 30 of any year, beginning with the year 2000, a State has not yet been determined by the agencies, based on the State's laws and a conforming certification, to comply with section 164 and the implementing regulations, the agencies will make an initial determination that the State does not comply with section 164, and the transfer of funds will be noted in the FHWA's advance notice of apportionment for the following fiscal year, which generally is issued in July.

Each State determined to be in noncompliance will have until September 30 to rebut the initial determination or to come into compliance. The State will be notified of the agencies' final determination of compliance or noncompliance and the amount of funds to be transferred as part of the certification of apportionments, which normally occurs on October 1 of each fiscal year.

The agencies requested written comments from interested persons on the interim final rule. The agencies stated in the interim rule that all comments submitted would be considered and that, following the close of the comment period, the agencies would publish a document in the Federal Register responding to the comments and, if appropriate, make revisions to the provisions of part 1275.

The agencies received submissions from thirteen commenters in response to the interim final rule. Comments were received from five States, three organizations representing State interests and five other individuals or organizations with an interest in the issues being considered as part of these proceedings. The State comments were submitted by Tricia Roberts, Director of the Delaware Office of Highway Safety, Brian J. Bushweller, Secretary of the Delaware Department of Public Safety and Anne P. Canby, Secretary of the Delaware Department of Transportation (Delaware); James R. DeSana, Director of the Michigan Department of Transportation and Betty J. Mercer, Division Director of the Office of Highway Safety Planning, Michigan Department of State Police (Michigan); Thomas E. Stephens, P.E., Director of the Nevada Department of Transportation (Nevada); Keith C. Magnusson, Director of Driver and Vehicle Services, North Dakota Department of Transportation (North Dakota); and Charles H. Thompson, Secretary of the Wisconsin Department of Transportation (Wisconsin).

The comments received from organizations representing State interests were submitted by Kenneth M. Beam, President and CEO of the American Association of Motor Vehicle Administrators (AAMVA); Carl D. Tubbesing, Deputy Executive Director of the National Conference of State Legislatures (NCSL); and K. Craig Allred, Director of the Utah Highway Safety Office, who commented in his capacity as the Chair of the National Association of Governors' Highway Safety Representatives (NAGHSR).

The comments from individuals or organizations with an interest in the issues being considered in these proceedings were submitted by Mothers Against Drunk Driving (MADD); Richard Freund, President of LifeSafer Interlock, Inc. (LifeSafer); Henry Jasny, General Counsel for Advocates for Highway and Auto Safety (Advocates); Robert B. Voas, Ph.D., of the Pacific Institute (Dr. Voas); and James Hedlund of Highway Safety North (Dr. Hedlund).

Additionally, while not written in response to this rulemaking action, the National Transportation Safety Board (NTSB) issued a Safety Recommendation (H-00-27) to the Secretary of Transportation on August 7, 2000, related to the section 164 program.

The comments, and the agencies' responses to them, are discussed in detail below. Also discussed below are certain changes that the agencies have decided to make in this final rule based on their experience reviewing State laws and proposed legislation since the issuance of the interim final rule.

Some of the comments submitted in response to the interim final rule commended the agencies on the manner in which the interim rule implemented the statutory requirements. North Dakota, for example, stated that it did “not have any problems with the text of the regulation” and that the regulations “appear to track with the law” and “seem to be straight forward and appropriate.” Advocates also supported the interim regulations. Its comments provided that “in nearly all respects, the agencies have made reasoned and well thought out decisions in areas left to agency discretion by the statute.”

Many of the comments, however, were critical of the section 164 program in general. While most commenters recognized that the criteria that States must meet and the consequences that will result to any State that fails to comply with them were defined by statute, many of the commenters were critical of these features of the program.

For example, regarding the use of consequences for State non-compliance, Delaware asserted that, while it “has long supported efforts to reduce impaired driving on our roadways, we strongly oppose the sanctions related to this Repeat Intoxicated Driver Law. We believe that transfer penalties interfere with the [States'] progress towards comprehensive efforts.” Michigan recommended that Congress should establish instead a “performance-based alternative” under which States “can demonstrate measurable, significant success in reducing recidivism, either within the state or as compared to the national average.” NCSL and the State of Wisconsin also objected to the use of transfer sanctions.

Regarding the statutory criteria that States must meet to avoid the sanction, NCSL expressed its belief that “a one-size-fits-all approach is not the best way to tackle the nation's drunk driving problem.” In addition, NAGHSR and some of the State commenters predicted that the criteria are so stringent, it is unlikely that any State will fully comply.

NHTSA and the FHWA acknowledge that some of the compliance criteria are strictly defined in section 164 and that some may consider the consequences established in section 164 for States that fail to comply with these criteria to be rather severe. However, the agencies are bound to implement the section 164 program, in accordance with the requirements that were established by the statute. Regarding Michigan's suggestion that a performance-based alternative be established, we note that Congress has established performance-based programs under section 157 (for seat belt use) and section 410 (for impaired driving), but Congress has thus far chosen to use a different approach in the area of repeat intoxicated drivers.

Moreover, we note that this program has had a significant impact on State repeat intoxicated driver laws. Since the enactment of the TEA 21 Restoration Act, State repeat intoxicated driver laws have been strengthened, through the passage of new legislation, in 19 States and the District of Columbia. NHTSA has determined that the laws of nearly half the States (23 of them to date) and the District of Columbia fully comply with the section 164 requirements.

Finally, we note that, in the Safety Recommendation that it issued to the Secretary on August 7, 2000, NTSB submitted detailed comments regarding the statutory requirements contained in section 164. NTSB stated that the section 164 program represents “a substantial effort by Congress to address the hard core drinking driver problem * * * However, the Safety Board believes that this legislation could be even more effective.” The Board recommended that the agency:

Since NTSB's comments recommend that the agency seek legislative changes to the section 164 program, these comments will not be addressed specifically in this final rule. These recommendations are being considered separately by the agency, outside the scope of this rulemaking action.

Section 164 provides that, to avoid the transfer of funds under this program, a State must enact and enforce:

The statute defines the term “repeat intoxicated driver law” to mean “a State law that provides [certain specified minimum penalties for] an individual convicted of a second or subsequent offense for driving while intoxicated or driving under the influence * * *” The agencies incorporated this definition into the interim final rule. The interim rule also defined the term “repeat intoxicated driver.” Consistent with other programs conducted by the agencies and with State laws and practices, the interim regulations provided that an individual is a “repeat intoxicated driver” if the driver was convicted of driving while intoxicated or driving under the influence of alcohol more than once in any five-year period.

The terms “driving while intoxicated” and “driving under the influence” were defined in the statute to mean “driving or being in actual physical control of a motor vehicle while having an alcohol concentration above the permitted limit as established by each State.” The statute also defined the term “alcohol concentration.” The interim regulations adopted these definitions without change.

The agencies received a number of comments regarding these definitions. Most of the comments sought to expand the definition of the terms “driving while intoxicated” and “driving under the influence,” so that a broader set of offenses would result in mandatory sanctions.

For example, MADD, Dr. Hedlund and Dr. Voas questioned the use of language in this definition, which provides that offenders must have had “an alcohol concentration above the permitted limit as established by [the] State.” As Dr. Hedlund explained in his comments, the inclusion of this language “raises the issue of whether an alcohol concentration test is required to establish the offense of driving while intoxicated (or driving under the influence). In practice, for a variety of reasons, it is not possible to obtain an alcohol concentration test for every individual arrested for driving while intoxicated. In particular, some individuals refuse to provide a breath test. But many individuals are convicted of driving while intoxicated without an alcohol concentration test, based on other evidence obtained by the arresting officer.” Accordingly, these three commenters urged the agencies to modify the interim regulations to clarify that the mandatory sanctions must apply to offenders who are convicted of “driving while intoxicated” or “driving under the influence,” even if their alcohol concentrations are not known.

The agencies agree with these comments. Offenders who were convicted of driving while intoxicated or driving under the influence should not avoid the mandatory sanctions, simply because their alcohol concentrations are not known. Congress would not have intended such an outcome. To provide clarification in the implementing regulations, the agencies have modified the definition of the terms “driving while intoxicated” and “driving under the influence” to mean “driving or being in actual physical control of a motor vehicle while having an alcohol concentration above the permitted limit as established by each State, or an equivalent non-BAC intoxicated driving offense.”

These definitions should clarify that, to comply with the Section 164 program, a State's law must apply the mandatory sanctions to any offender who is convicted of driving while intoxicated or driving under the influence of alcohol, whether or not the conviction is based on the offender's alcohol concentration level. The definitions should clarify also that the driving while intoxicated or driving under the influence offense must be the “standard” offense in the State. In other words, the sanctions need not apply to lesser included offenses (such as .05 BAC driving while impaired offenses), but it is not sufficient if the sanctions apply only to “high BAC” (such as .17 or .20 BAC) offenses.

MADD and the State of Wisconsin recommended two additional changes. They urged the agencies to expand these definitions to require the imposition of mandatory sanctions on offenders who refuse to submit to an alcohol test, even if they are not convicted of driving while intoxicated or driving under the influence, and on offenders who are convicted of driving while under the influence “of drugs” other than alcohol.

The agencies are unable to adopt these recommendations because they are outside the scope of the section 164 program, as authorized by Congress. section 164 specifically provides that a conforming “repeat intoxicated driver law” is a law that applies the specified mandatory sanctions to individuals “convicted” of a second or subsequent offense. Accordingly, the agencies do not have the authority to require that States apply these sanctions to offenders who are not convicted of the driving while intoxicated or driving while under the influence offense. As discussed above, the agencies have modified the regulations to clarify that the mandatory sanctions specified in section 164 must apply to offenders who refuse to submit to an alcohol test and are convicted of driving while intoxicated or driving under the influence. However, the sanctions need not apply to offenders who refuse to submit to an alcohol test and are not convicted of such an offense. Of course, if States choose to apply additional sanctions to these offenders, the section 164 program will not prevent them from doing so.

Similarly, there is nothing in the language or the legislative history of section 164 that indicates that Congress expected that the mandatory sanctions must apply to offenders convicted of driving under the influence “of drugs” other than alcohol. In fact, several portions of the statute make it clear that the program was designed specifically to address repeat offenders convicted only of driving while intoxicated or under the influence “of alcohol.” For example, the offenses are defined to require that the driver had “an alcohol concentration above the permitted limit.” In addition, two of the sanctions that must be imposed include requiring “an assessment of the individual's degree of abuse of alcohol [not drugs]” and vehicle sanctions, such as “the installation of an ignition interlock system” on the offenders” vehicles, which would prevent the offender from starting or operating a vehicle with any alcohol (not drugs) in his or her system.

Since these recommended changes would exceed the scope of section 164, they have not been adopted in this final rule.

As stated above, the interim regulations defined the term “repeat intoxicated driver” to mean “a person who has been convicted previously of driving while intoxicated or driving under the influence within the past five years.” The agencies received two comments, from the State of Delaware and from Advocates, regarding the meaning of this definition.

Specifically, Delaware noted that “this provision does not take into account an offender who has been arrested of more than one DUI offense within a 5 year period but has not been convicted of both at the time of the second or subsequent arrest.” Advocates requested clarification about the effect of this definition on States that do not maintain or, “look back” at, records for the full five-year period. According to Advocates, “the agencies do not unequivocally state that laws with only a 3 year “look back” provision do not comply with the implementing regulations in the interim final rule.”

The agencies wish to verify that Delaware's interpretation of the regulations is correct. To determine whether an individual is a repeat intoxicated offender for the purpose of this program, the State is required to consider whether an individual was convicted (not arrested) more than once within a five-year period. In response to the comments received from Advocates, we wish to clarify that, to comply with the section 164 requirements, States must not only provide that mandatory sanctions apply to offenders convicted more than once within a five-year period, the States must also ensure that such sanctions are imposed. This requires necessarily that the State has the ability to, and in fact does, “look back” five (or more) years to determine whether the sanctions should be applied.

To further clarify this definition, the agencies have modified the language slightly, so that it now provides that the term “repeat intoxicated driver” means “a person who has been convicted of driving while intoxicated or driving under the influence of alcohol more than once in any five-year period.”

Most comments received by the agencies in response to the interim final rule related to the specific criteria that repeat intoxicated driver laws must meet for a State to avoid a transfer of funds. Comments were received regarding each of the four penalties, described in the criteria, that State laws must impose on repeat intoxicated drivers. These comments and the agencies' responses to them are discussed in greater detail below.

Section 164 provides that, to avoid a transfer of funds, the State must have a law that imposes a mandatory minimum one-year driver's license suspension on all repeat intoxicated drivers. The statute defines the term “license suspension” to mean “the suspension of all driving privileges.” Accordingly, the interim final rule provided that the offender must be subject to a hard suspension (or revocation), for a minimum period of one year, during which the offender cannot be eligible for any driving privileges, such as a restricted or hardship license.

The agencies received comments from NAGHSR, LifeSafer, and the States of Wisconsin, Michigan and Delaware objecting to the one-year hard license suspension requirement. These commenters cited a number of reasons for their objections. Wisconsin, NAGHSR and Michigan, for example, thought a one-year hard license suspension could result in financial hardships to some offenders, particularly those who live in rural communities. According to comments from both NAGHSR and Michigan, “Rural offenders would be especially adversely impacted since they may not be able to arrange for alternative means of transportation during such an extended period.” In addition, Delaware, Wisconsin and Michigan suggested that, ultimately, this strict requirement might have the unintended effect of, as Delaware put it, offering some offenders with “no alternatives” and encouraging them to drive without a valid license. These commenters all seem to agree that repeat intoxicated drivers should be subject to a one-year driver's license suspension that includes some period of hard suspension, but they suggested hard suspension periods of less than one year, such as 30 or 60 days.

Further, NAGHSR asserted that it had “found nothing in the legislative history of [section 164] which would support the need for a one-year hard license suspension.” In addition, Michigan stated that it thought it “unlikely that any State will be in compliance with the provision” and NAGHSR predicted that “few State legislatures will be willing to enact [conforming] legislation.”

The agencies do not share the concerns that were expressed in these comments. Regarding the agencies' authority to include in the regulations a one-year hard driver's license suspension requirement, the agencies have determined that inclusion of this requirement is not only supported by section 164's legislative history, but is required by the plain language of the statute itself. The statute provides specifically that State laws must provide, “as a minimum penalty, that [repeat intoxicated drivers] * * * shall receive a driver's license suspension for not less than 1 year” and the statute defines the term “license suspension” to mean “the suspension of all driving privileges.” [Emphasis added.]

Regarding the predictions that few, if any, States would enact conforming legislation, we note that, to date, 23 States and the District of Columbia have laws that NHTSA has determined meet all the section 164 requirements and at least 11 additional States meet the one-year hard driver's license suspension criterion, although they do not meet all the requirements of the section 164 program. We note also that, although they objected initially to this criterion in their comments to the interim final rule, Michigan and Utah are two of the States whose laws have been determined to comply fully with section 164, including the one-year hard license suspension requirement.

Regarding the comments that suggest that a one-year hard license suspension could result in financial hardships to some offenders, particularly those who live in rural communities, the agencies note that the research that has been performed in this area does not support that conclusion. Although the research to date has not studied the impact of hard suspensions of a full one-year period, there has been research that found that hard suspensions of a shorter length of time did not have an impact at all on an offender's employment. In a 1996 study of three States with administrative license revocation programs, for example, researchers found that 94% of the offenders who were employed at the time of arrest were still working after a one-month revocation period. The researchers found also that the percentage of offenders still employed one month after arrest was the same in comparison States that did not apply a license revocation sanction. Moreover, the agencies note that many of the States with conforming laws contain regions that are rural in nature. Some of the States with conforming laws include Alabama, Arizona, Iowa, New Hampshire, Oregon and Utah.

The agencies recognize, as the commenters do, that many offenders who are subject to license suspensions or revocations operate motor vehicles anyway, without a valid license. As we noted in the interim final rule, some studies have found that as many as 70 percent of all repeat offenders continue to drive even after their driver's licenses have been suspended or revoked.

However, the agencies do not believe that the elimination or even the reduction of driver licensing sanctions is the best remedy for this problem. We believe that Congress hoped that States would address that concern instead by enacting strong vehicle sanctions, including those outlined in the second criterion of the section 164 program (and discussed in greater detail below), such as by impounding or immobilizing the motor vehicles owned by the offender during the suspension or revocation period. In addition, States are encouraged, under NHTSA's Section 410 program, to establish separate vehicle sanctions for offenders who operate a motor vehicle while their license is under suspension or revocation.

For the reasons discussed above, this portion of the interim regulations has been adopted without change.

Section 164 provides that, to avoid the transfer of funds, the State must have a law that requires the impoundment or immobilization of, or the installation of an ignition interlock on, each motor vehicle owned by the repeat intoxicated offender.

The term “impoundment or immobilization” was defined in the interim regulations to mean “the removal of a motor vehicle from a repeat intoxicated driver's possession or the rendering of a repeat intoxicated driver's motor vehicle inoperable,” and the agencies indicated that the definition would also include “the forfeiture or confiscation of a repeat intoxicated driver's motor vehicle or the revocation or suspension of a repeat intoxicated driver's motor vehicle license plate or registration.” The agencies defined the term “ignition interlock system” in the interim regulations to mean “a State-certified system designed to prevent drivers from starting their [motor vehicles] when their breath alcohol concentration is at or above a preset level.”

The interim final rule explained that the State law does not need to provide for all three types of penalties to comply with this criterion, but it must require that at least one of the three penalties will be imposed on all repeat intoxicated drivers for the State to avoid the transfer of funds.

The interim final rule also specified that, to comply with the interim regulations, the State law must require that the impoundment or immobilization must be imposed during the one-year suspension period, or that the ignition interlock be installed at the conclusion of the suspension period. The interim regulations did not specify the length of time during which these penalties must remain in effect.

The impoundment, immobilization or ignition interlock criterion is the most complex of the section 164 requirements. Accordingly, it is not surprising that it generated the most comments. Every respondent that submitted comments in response to the interim final rule addressed at least some aspect of this requirement. The comments received regarding this criterion and the agencies' responses to them are discussed in detail below.

a. Mandatory Penalty. The agencies explained, in the preamble to the interim final rule, that the State law does not need to provide for all three types of penalties to comply with this criterion, but it must require that at least one of the three penalties will be imposed on all repeat intoxicated drivers, for the State to avoid the transfer of funds. Later in the interim rule, when describing the time frame for these three penalties, the agencies stated that the State law must require that the impoundment or immobilization be imposed during the one-year suspension term, and that the ignition interlock system be installed at the conclusion of the one-year term. These statements generated four comments regarding the mandatory nature of this criterion.

AAMVA and the State of North Dakota objected to the statement that the State law must “require that at least one of the three penalties will be imposed.” They asserted that the impoundment, immobilization or ignition interlock sanctions need only “be available” or that they “may” be imposed. These commenters did not believe that these sanctions “must” be imposed. The agencies disagree. Section 164 provides for four minimum penalties, and we find that there is nothing in either the statutory language or the legislative history to suggest that three of the penalties are mandatory and the fourth (the impoundment, immobilization or ignition interlock requirement) is optional.

The commenters seem to base their assertion on the fact that the statute provides that State laws must require that repeat intoxicated drivers must “receive” license suspensions, minimum sentences and assessment and treatment, while the statute provides that they must “be subject to” the impoundment, immobilization or ignition interlock requirement. The agencies conclude that the difference in language in this provision does not signify any difference in the mandatory nature of the requirement, but is simply a grammatical device used, since an offender may “receive” a suspension, a sentence, an assessment and treatment, but an offender would not “receive” an impoundment, immobilization or ignition interlock installation. Rather the offender is “subject to” these sanctions when the sanctions are applied to the offender's vehicles. The agencies continue to conclude that, to avoid a sanction, the State law must require that at least one of these three penalties must be imposed on all repeat intoxicated drivers.

The State of Nevada objected to the statement in the interim final rule that “the State law must require that the impoundment or immobilization be imposed during the one-year suspension term, and that the ignition interlock system be installed at the conclusion of the one-year term.” [Emphasis added.] Nevada thought this statement was meant to signify that States must impose the impoundment or immobilization penalty (during the license suspension period) and also the ignition interlock penalty (at the end of the suspension period).

However, this was not the meaning that the agencies had intended to convey. Rather, the statement was included simply to clarify the time frames for each of these sanctions. Regarding the mandatory nature of these sanctions, the agencies believe the plain language in the interim regulations is clear. It provides, “to avoid the transfer of funds * * *, a State must enact and enforce a law that establishes that all repeat intoxicated drivers shall * * * be subject to either * * * the impoundment * * *, immobilization * * * or ignition interlock [sanction].” In addition, as the agencies explain in the preamble to the interim final rule, “the State law does not need to provide for all three types of penalties to comply with this criterion, but it must require that at least one of the three penalties will be imposed.” Since the statement which Nevada found ambiguous was in the preamble to the rule, and not the interim regulations themselves, no regulatory changes are needed in this final rule to clarify this statement.

Moreover, we note that no other commenters interpreted the interim final rule in this way. Advocates, for example, stated in its comments, “The agencies appropriately analyzed the distinct purposes of these sanctions, and correctly noted that section 164 requires the imposition only of one sanction since they are set forth disjunctively in the statute.”

Accordingly, no changes to the interim regulations have been adopted in response to these comments.

b. Timing of the Sanctions. In the interim final rule, the agencies explained that Section 164 does not specify when a State must impose the impoundment or immobilization of, or the installation of an ignition interlock system on, motor vehicles. Therefore, to determine when these penalties must be imposed, the agencies considered the purpose of the three penalties.

The agencies recognized in the interim rule that the purpose of an impoundment or immobilization sanction is very different from that of the installation of an ignition interlock system. We explained that, when an individual convicted of driving while intoxicated is subject to a driver license suspension, it is expected that the individual will not drive for the length of the suspension term. However, some studies have found that as many as 70 percent of all repeat offenders continue to drive even after their driver's licenses have been suspended or revoked.

Accordingly, the agencies concluded that the laws that provide for the impoundment or immobilization of motor vehicles are designed to ensure that driver's license suspension sanctions are not ignored. They seek to prevent offenders from driving vehicles while their driver's licenses are under suspension.

The agencies explained in the interim final rule that laws that provide for the installation of an ignition interlock system on a motor vehicle, on the other hand, are not designed to prevent the individual from driving. Such laws generally provide that these systems will be installed on a motor vehicle once the individual's driver's license has been restored. The agencies stated that these laws recognize that many individuals convicted of driving while intoxicated have difficulty controlling their drinking. Accordingly, they are designed to prevent individuals, once they are permitted to drive again, from drinking and driving.

Based on the nature of these penalties, the agencies decided in the interim final rule not to adopt a uniform time frame for these three penalties. Instead, the interim regulations provided that the State law must require either the impoundment or immobilization of the offender's vehicles during the one-year suspension term or the installation of an ignition interlock system at the conclusion of the suspension. The interim regulations did not specify the length of time during which these penalties must remain in effect.

The agencies received a number of comments regarding these features of the interim regulations.

Some of the comments expressed support for these aspects of the interim regulations. For example, Advocates stated, “the agencies accurately recognize that impoundment or immobilization are sanctions that should be imposed concurrently with a one-year suspension, whereas the ignition interlock would logically apply after the suspension is completed.” However, most of the comments received by the agencies were critical of these aspects of the interim rule.

Regarding the application of impoundment or immobilization sanctions, many of the commenters were troubled that the interim regulations did not establish a minimum length of time for these penalties. NCSL, NAGHSR and the State of Michigan, for example, were concerned that a State could comply with this requirement by impounding or immobilizing a vehicle for a single day, and MADD and LifeSafer ventured that a State may even be able to comply by impounding or immobilizing a vehicle for only an hour. Some of the commenters specified a minimum period of time that would be appropriate, such as 30 days, which was suggested by MADD and Dr. Voas, or 15-30 days, which was suggested by LifeSafer.

Some of the commenters also suggested that the impoundment or immobilization sanction should be imposed quickly, to maximize the impact of these sanctions and to prevent offenders from transferring their vehicles. MADD, LifeSafer and Dr. Voas, for example, urged the agencies to require that such sanctions occur immediately, at the time of the offender's arrest.

Regarding the installation of ignition interlock devices, many of the commenters objected to the requirement that ignition interlock devices must be installed at the conclusion of the one-year driver's license suspension. LifeSafer asserted that these devices have been shown to be effective and predicted that a one-year delay would greatly curtail their use. NCSL and the State of Michigan thought it was unlikely that any State would adopt the ignition interlock sanction under these conditions. MADD asserted that, “the longer the ignition interlock device remains on the offender's vehicle, the more effective it is in changing his or her behavior and increasing the likelihood of reducing recidivism.” Accordingly, MADD suggested that ignition interlock devices should be installed at the time of arrest and should remain on the offender's vehicle for a minimum period of one year following license reinstatement.

The agencies have decided not to change the regulations in response to these comments. As the agencies explained in the interim final rule, while section 164 required that State laws must provide for the impoundment or immobilization of, or the installation of an ignition interlock device on, motor vehicles, the statute was silent regarding the timing of these sanctions. Section 164 did not specify the length of time that these sanctions must remain in effect, or require that these sanctions must take place immediately at the time of arrest.

Moreover, the use of these sanctions is still a relatively new development in the field of impaired driving countermeasures. The agencies do not believe there are currently sufficient research findings to dictate a minimum period of time for these sanctions, in the absence of statutory direction. In addition, while States may choose to require the imposition of these sanctions at the time of the offender's arrest as part of their programs, the agencies do not believe we have sufficient information, in the absence of statutory direction, to make this a condition of compliance. Plus, we do not want to stifle innovation. The rule has been drafted, within the framework of the statute, to provide States with as much flexibility as possible, to enable them to establish the terms for conducting their programs in ways that are most appropriate under their own statutory schemes.

While a number of the commenters were concerned that States would be able to qualify under this criterion by impounding or immobilizing vehicles for only a day or even an hour, the agencies note that, to date, 11 States and the District of Columbia have demonstrated compliance with this section 164 criterion based on an impoundment or immobilization law, and no State law provides that vehicles (or the license plate or registration) will be impounded or immobilized for such an insignificant period of time. Although two States provide for a five-day minimum and one State requires a 30 day minimum impoundment or immobilization, all other States and the District of Columbia require that the impoundment or immobilization remain in effect for the duration of the license suspension or for a minimum of at least one year.

Regarding the installation of ignition interlock devices, the agencies recognize that a significant number of offenders continue to drive even after they lose their driving privileges, and that many of them choose not to reapply for a license even once they become eligible to do so. We recognize also that ignition interlock devices have been shown to be effective at reducing the incidence of impaired driving during their use. Accordingly, the agencies appreciate the sentiments expressed by a number of the commenters, who suggested that strategies be used to create an incentive for repeat offenders to drive only with a valid license and not to drink and drive. These commenters recommended that we permit States to restore restricted driving privileges to repeat intoxicated drivers and install ignition interlock devices on their vehicles prior to the completion of a one-year hard license suspension.

However, the agencies continue to conclude that such a strategy is not permitted under section 164, since the statute specifically provides under the first criterion (discussed in detail above) that State laws must require that repeat intoxicated drivers receive a one-year suspension of all their driving privileges. In addition, we find that, while the installation of ignition interlocks has been shown to reduce the incidence of drinking and driving, other strategies (such as impoundment, immobilization or strict driving while suspended laws) may be more appropriate when seeking to prevent offenders whose licenses have been suspended from getting behind the wheel of a vehicle during their periods of suspension.

Morever, we note that, if States choose to install ignition interlock devices on offenders' vehicles prior to the end of the one-year license suspension, as an extra measure of protection against impaired driving, even though the offender should not be driving at all, the regulations will not prevent the States from doing so. However, to satisfy the one-year license suspension criterion of section 164, such States may not restore to these offenders any driving privileges during the one-year period. In addition, to satisfy the impoundment, immobilization or ignition interlock criterion of section 164, the ignition interlock devices must remain on the offenders' vehicles for some period of time after the license suspension has ended.

While some commenters were concerned that States would not be willing to adopt a law that provides for the installation of ignition interlock devices under the conditions established in the interim regulations, the agencies note that, to date, 12 States have demonstrated compliance with this section 164 criterion based on an ignition interlock law.

For all of the reasons discussed above, the agencies have adopted this portion of the interim regulations without change.

c. All Vehicles Owned by the Offender. The agencies indicated in the interim final rule that, in order to qualify under this criterion, each motor vehicle owned by the repeat intoxicated driver must be subject to one of the three penalties.

A number of comments were submitted to the agencies objecting to this feature of the rule. The comments raised two types of concerns. Some considered this requirement to be overly broad; others considered its scope not to be broad enough.

The commenters who considered the requirement to be overly broad called it “unreasonably severe,” “unjustified” and “counter productive.” Dr. Hedlund of Highway Safety North, for example, explained that “State impoundment and immobilization laws typically apply to a single vehicle (the vehicle driven by the offender when the offense was committed), not to all vehicles owned by the offender” and that “State interlock programs typically require the offender to install an interlock on his (or her) primary vehicles and require the offender to drive only that vehicle.”

Dr. Hedlund, LifeSafer, NAGHSR and others expressed concern that such a strict application of this requirement could prove to be a disincentive to its adoption and use. In addition, the State of Wisconsin questioned whether the impoundment or seizure of all vehicles owned by an offender would raise constitutional issues. As an alternative, LifeSafer recommended that the ignition interlock sanction should be “tied” to the offender's license, rather than to the vehicles owned by the offender ( i.e. , as a license restriction that provides that the offender may drive only vehicles on which ignition interlocks are installed). Finally, NAGHSR asserted that “nothing in the legislative history of this provision indicates that Congress intended the sanctions to apply to every vehicle owned by the offender.”

Regarding the agencies' authority to require that these sanctions apply to every vehicle owned by the offender, the agencies have determined that inclusion of this requirement is not only supported by section 164's legislative history, but is required by the plain language of the statute itself. Section 164 provides specifically that repeat intoxicated offenders must “be subject to the impoundment or immobilization of each of the individual's motor vehicles or the installation of an ignition interlock system on each of the motor vehicles [emphasis added].”

The agencies believe Congress established these requirements because, for repeat offenders, taking his or her vehicle at the time of arrest and placing an ignition interlock restriction on the offender's license may not be enough. Congress wanted to do more than get the attention of these offenders. Congress wanted States to take steps to prevent repeat intoxicated drivers from driving at all during their license suspension or from drinking and driving once their licenses were returned. If one of the offender's vehicles has been impounded or immobilized, but another vehicle is available at home, or if one of the offender's vehicles is fitted with an ignition interlock device and another is not, these objectives may not be achieved.

Moreover, the agencies note that, to date, 25 States and the District of Columbia have been determined to comply with this criterion, by applying either an impoundment, immobilization or the installation of ignition interlock devices on all motor vehicles owned by repeat intoxicated drivers.

The commenters who considered the requirement not to be broad enough were concerned that offenders could avoid these sanctions by using a variety of “loopholes.” Dr. Hedlund of Highway Safety North, MADD and the State of Michigan, for example, were concerned that offenders could transfer title to their vehicles after arrest and prior to conviction; the State of Wisconsin suggested that offenders could register vehicles using the names of friends or family members, or other aliases; and MADD was concerned that offenders could operate vehicles that are “owned” by other people.

Section 164 did not require that State laws address these particular issues, and the agencies have not expanded this criterion by adding any such requirements. The agencies note, however, that some States have enacted laws that surpass the minimum requirements established in section 164, and include provisions that have the potential to “close” some of these “loopholes.” Some States, for example, apply their vehicle sanctions not only to vehicles “owned” by the repeat offender, but also to vehicles “operated” by such offender. Other State laws contain provisions that specifically prohibit offenders from transferring title to their vehicles. States that choose to include in their laws similar provisions, which exceed the section 164 requirements, are able (and encouraged) to do so, but such provisions are not necessary for the State to demonstrate compliance with the impoundment, immobilization or ignition interlock criterion.

For the reasons discussed above, this portion of the interim regulations has been adopted without change.

d. Exceptions Permitted. In the interim final rule, the agencies explained that, consistent with past practices under the section 410 program, the agencies will permit States to provide limited exceptions to the impoundment or immobilization requirements on an individual basis, to avoid undue hardship to an individual, including a family member of the repeat intoxicated driver, or a co-owner of the motor vehicle, but not including the repeat intoxicated driver. However, the agencies decided not to permit an exception to the installation of the ignition interlock system requirement. The interim final rule explained that the agencies believe that an exception to the requirement that an ignition interlock system be installed is not necessary, since the requirement does not prevent a motor vehicle from being available for others dependent on that vehicle. It only prevents an individual from operating the vehicle under the influence of alcohol.

Comments regarding this portion of the interim regulations suggested that additional exceptions should be permitted. NAGHSR, NCSL and the States of Delaware, Michigan and Wisconsin emphasized that the imposition of an impoundment or immobilization or the installation of ignition interlock devices can be very costly to offenders and their families. Not only do these sanctions cause vehicles to be unavailable, but there are also administrative costs associated with the sanctions. The commenters asserted that these costs can result in an undue financial hardship for many families.

In addition, NAGHSR and LifeSafer both asserted that there is a need for an employer exception. LifeSafer explained that, in States where the ignition interlock device is tied to a restriction on the license, States “have recognized the need for an employer exemption that allows the offender to operate an employer vehicle in the course and scope of employment without the [ignition interlock device]” so long as certain conditions are met. LifeSafer states that the exemption is necessary “to avoid undue hardship on an employer.”

NAGHSR and LifeSafer indicated that the employer exception they seek is needed if the ignition interlock device is tied to a restriction on the offender's license. Since section 164 requires that the installation of ignition interlocks must be tied to all vehicles owned by the offender, and not to the offender's driver's license, the agencies believe the employer exception sought by NAGHSR and LifeSafer is not needed. Accordingly, the agencies have not added an employer exception to the regulations.

Based on the concerns raised in the comments regarding the financial hardship that families may suffer due to the administrative expenses that may be imposed in connection with the installation of ignition interlock devices on each vehicle owned by the offender, however, the agencies have reconsidered their decision to not permit a hardship exception to the ignition interlock sanction.

Accordingly, the interim regulations have been modified in this final rule to add an exception to the ignition interlock requirement. A State may provide an exception to the ignition interlock requirement for financial hardship, provided the State law requires that the offender may not drive a vehicle without an ignition interlock system, such as by requiring that a restriction be placed on the offender's license.

To ensure that the availability of these exceptions do not undermine the impoundment, immobilization or ignition interlock requirements, exceptions must be made in accordance with Statewide published guidelines developed by the State, and in exceptional circumstances specific to the offender's motor vehicle.

e. Other Comments Related to the Sanctions. The interim regulations provided that “impoundment or immobilization” included “the removal of a motor vehicle from a repeat intoxicated driver's possession or the rendering of a repeat intoxicated driver's motor vehicle inoperable.” The interim regulations provided that these terms include also “the forfeiture or confiscation of a repeat intoxicated driver's motor vehicle or the revocation or suspension of a repeat intoxicated driver's motor vehicle license plate or registration.”

LifeSafer objected to this aspect of the interim regulations. According to LifeSafer, “physically revoking the license plate or canceling the registration is not anywhere near as strong a message of physically taking or rendering incapable the operation [of] a motor vehicle. Secondly, the sanction is rendered ineffective because another license plate can be quickly obtained or transferred from another vehicle or the vehicle re-registered under another name.”

The agencies find, based on studies conducted in Minnesota and Ohio, that the research demonstrates that the revocation or suspension of vehicle registrations and license plates is an effective sanction. In fact, NHTSA has encouraged States to impose such a sanction on repeat offenders and individuals who drive with a suspended driver's license, under its section 410 program since 1992. Moreover, the agencies are not aware of any research findings that demonstrate a significant difference in effectiveness between the impoundment or immobilization of a motor vehicle as compared with the revocation or suspension of a vehicle registration or license plate. In the absence of any such findings, the agencies prefer to provide the States with some flexibility in this regard.

Finally, NAGHSR recommended in its comments that ignition interlocks should be used as part of a comprehensive, interrelated system, such as one under which the driver's license of the offender is suspended and the offender's vehicle is impounded or immobilized for a short period ( e.g., 15-30 days), at the time of arrest. Once that period of time passes, limited driving privileges are restored, the vehicle may be reclaimed and an ignition interlock is installed. Then, when the offender participates and completes treatment, the ignition interlock is removed.

The agencies appreciate the objectives that NAGHSR seeks to meet by suggesting such an approach, and we note that States may take this type of approach, if they wish to do so, when fashioning sanctions for first offenders. However, as stated previously in this final rule, such an approach would not be permitted under section 164 for repeat offenders. Under such an approach, a repeat intoxicated driver would be permitted to receive driving privileges during the initial one-year driver's license suspension period, and the statutory language contained in section 164 specifically requires that all driving privileges must be suspended for a period of one year. Accordingly, the agencies are unable to address this comment without an amendment to the underlying statute.

Accordingly, no changes will be made to the interim regulations in response to these particular comments.

Section 164 provides that, to avoid the transfer of funds, the State must have a law that requires that all repeat intoxicated drivers must receive “an assessment of the individual's degree of abuse of alcohol and treatment as appropriate.” In the interim final rule, the agencies specified further that the State's law must require that all repeat intoxicated drivers must undergo an alcohol assessment and the law must authorize the imposition of treatment as appropriate.

The agencies received comments regarding this criterion from LifeSafer, NAGHSR, MADD, the State of Delaware and Dr. Voas. Both NAGHSR and LifeSafer indicated that they are aware that there are some States that provide for mandatory treatment of repeat intoxicated offenders, but may not require that these offenders be assessed. In their view, since the treatment is provided automatically, these States should be considered to be fully in compliance with the assessment and treatment requirement.

It is the view of the agencies that, if a State provides for mandatory treatment of repeat intoxicated offenders and the State's mandatory treatment program includes a mandatory assessment component, such a program will enable the State to demonstrate compliance with the section 164 assessment and treatment criterion. If assessments are not conducted of all repeat offenders as part of such a program, however, the agencies will find that the State's program does not fully comply. This decision is based on the agencies' conclusion that the purpose of the assessment is to determine not only whether an offender should undergo treatment, but also what type and level of treatment is appropriate for that offender. Programs that assign treatment to offenders without first assessing the needs of those offenders may be ineffective in resolving any alcohol abuse problems that the offenders may have. The agencies note that, in addition to the District of Columbia and the 23 States that meet all of the section 164 requirements, at least 10 additional States meet the assessment and treatment criterion.

The agencies received comments also from MADD, the State of Delaware and Dr. Voas regarding this criterion. According to their statements, these commenters do not believe the agencies went far enough in the interim regulations when we provided that the State's law “must authorize the imposition of treatment as appropriate.” These commenters urged the agencies instead to require that States make treatment mandatory. MADD, for example, stated that, “while the rule requires mandatory alcohol assessment, there is no requirement that treatment is mandatory even when the results of the assessment calls for treatment.” Dr. Voas explained why he thought such a requirement should be adopted. He asserted that “the value of assessment is entirely dependent on the offender receiving the treatment.”

As the agencies indicated in the interim final rule, there is a wide array of programs and activities that can be used to treat offenders who have alcohol abuse problems. Because of the many options available, the agencies believe it would be difficult to establish a specific requirement in the regulations that would have meaning, and also provide the States and their judicial systems with the flexibility they need to have the greatest impact.

In his comments, Dr. Voas took particular issue with a statement that was included in the preamble to the interim final rule, in which the agencies said that, “to qualify under this criterion, the State law must make it mandatory for the repeat intoxicated driver to undergo an assessment, but the law need not impose any particular treatment (or any treatment at all).” The agencies wish to clarify that, the agencies did not mean to imply by this statement that States should not refer individuals to treatment if treatment is warranted. Since the Section 164 requirements provide that all repeat intoxicated drivers must be assessed, we trust that the court systems will refer those offenders to treatment when warranted, and that offenders will be referred to the treatment that is most appropriate. Since the statement to which Dr. Voas objected was in the preamble to the rule, and not the interim regulations themselves, no regulatory changes are needed in this final rule to clarify this statement.

For the reasons discussed above, this portion of the interim regulations has been adopted without change.

Section 164 provides that, to avoid a transfer of funds, the State must have a law that imposes a mandatory minimum sentence on all repeat intoxicated drivers. For a second offense, the law must provide for a mandatory minimum sentence of not less than five days of imprisonment or 30 days of community service. For a third or subsequent offense, the law must provide for a mandatory minimum sentence of not less than ten days of imprisonment or 60 days of community service.

The agencies explained in the interim final rule that, consistent with NHTSA's administration of the section 410 program, the term “imprisonment” has been defined to include “confinement in a jail, minimum security facility, community corrections facility, * * * inpatient rehabilitation or treatment center, or other facility, provided the individual under confinement is in fact being detained.” In addition, we indicated in the interim final rule that house arrests would be included within the definition of “imprisonment” under the section 164 program, provided that electronic monitoring is used.

We received five comments in response to the interim final rule regarding this criterion. Most of the comments received related to the agencies' decision to include house arrests within the definition of imprisonment.

MADD and Dr. Voas objected to its inclusion. They argued that a house arrest for a period of only five or ten days is not a sufficiently strong penalty. MADD, for example, asserted “House arrest does not carry with it the specific deterrence or social stigma that incarceration in a jail facility does.” According to MADD, such a penalty “will have little or no impact on reducing recidivism which is the very purpose of this legislation.”

Conversely, LifeSafer, NAGHSR and Advocates supported the inclusion of house arrest, coupled with electronic monitoring, within the definition of the term imprisonment. LifeSafer “applauded” this decision based on its belief that “jail is the least effective sanction to reduce recidivism, States have severe jail overcrowding problems * * * [and] studies which indicate electronic monitoring has an impact greater than jail on reducing recidivism.” NAGHSR called this aspect of the interim rule the “most positive attribute of the interim final regulations.” According to Advocates, “although the historic use of the word imprisonment entails confinement in a traditional prison facility, we agree with the agencies that non-traditional approaches and the use of technological advancements should be utilized in attempt to make inroads against repeat intoxicated offenders. In this regard it is clear that courts are using home confinement and monitoring as an alternative means of detaining criminal offenders.”

As noted in the interim final rule, recent NHTSA research seems to indicate that house arrests are effective if they are coupled with electronic monitoring. While the agencies recognize that the periods of house arrest studied tended to be longer than five or ten days, we consider this alternative means of detaining offenders to be a promising strategy that should not be stifled under the provisions of these regulations. Accordingly, the agencies have decided to continue to permit States to use house arrest, coupled with electronic monitoring, in lieu of other confinement methods.

Dr. Voas suggested in his comments that, if the use of house arrest is permitted under the regulations, the State should extend the period of detention from five or ten days to a period of 90 days. The agencies do not find authority for establishing such an alternative length of time in the section 164 statute. Accordingly, we have not adopted this change in the regulations.

Finally, NCSL pointed out that many States have, over the years, enacted mandatory minimum sentences for repeat intoxicated drivers, in response to the Federal requirements that were established in the section 410 program. However, since section 164 requires States to establish a longer mandatory sentence (five and ten days, rather than 48 hours), even these States will need to enact new legislation. The agencies agree with NCSL's observation. However, these longer sentencing requirements are dictated by the statute.

This portion of the interim regulations has been adopted without change.

The interim final rule provided that, to avoid a transfer of funds, each State must submit a certification demonstrating compliance with the four section 164 criteria, which includes citations to all applicable provisions of their laws, as well as regulations or case law, as needed. The certifications must also assert that the State is enforcing its law. According to the interim final rule, once a State has been determined to be in compliance with the section 164 requirements, the State would not be required to resubmit certifications in subsequent fiscal years, unless the State's law had changed or the State had ceased to enforce its repeat intoxicated driver law. The interim final rule provided that it is the responsibility of each State to inform the agencies of any such change in a subsequent fiscal year, by submitting an amendment or supplement to its certification.

The interim final rule provided further that, to avoid a transfer in FY 2001, the agencies must receive a State's certification no later than September 30, 2000, and the certification must indicate that the State “has enacted and is enforcing a repeat intoxicated driver law that conforms to 23 U.S.C. 164 and [the agencies' implementing regulations].” States found in noncompliance with the requirements in any fiscal year, once they have enacted complying legislation and are enforcing the law, must submit a certification to that effect before the following fiscal year to avoid a transfer of funds in that following fiscal year. The interim rule indicated that such certifications must be submitted by October 1 of the following fiscal year.

In its comments in response to the interim final rule, Advocates recommended that States should be required to submit more than a certification to demonstrate that they are enforcing their repeat intoxicated driver laws. Advocates stated, “while the agencies need not require burdensome evidence of such enforcement, some indicia that a good faith effort is being made to enforce the repeat offender law should be sought. Since convictions and penalties imposed under such a law are relatively simple to establish through computerized records, the agencies can require some indicia as to the level of state enforcement without imposing significant burdens on the states.”

The agencies have not adopted this change. While there may be information in computerized records that States would be able to compile and submit to the agencies, we are uncertain how such a sufficient “level of enforcement” would be defined. Moreover, we find that the benefit of such a reporting requirement would not justify the effort that would be required.

Although the agencies did not receive any comments regarding the dates by which certifications must be submitted, we have concluded that this feature of the regulations requires clarification. The interim final rule provided that conforming certifications were due by September 30 to avoid a transfer of funds in FY 2001, and that certifications from States that did not previously comply with section 164 were due by October 1 to avoid a transfer of funds in subsequent fiscal years. To avoid confusion, the agencies have concluded that the same date should apply in any fiscal year. Accordingly, the regulations have been changed to provide that, to avoid a transfer of funds in FY 2001 or in any subsequent fiscal year, States will be required to submit certifications by September 30.

In addition, some States enacted conforming laws prior to September 30, 2000, but their new laws will not be effective until the next day, on October 1, 2000. The interim rule, which requires States to assert that they are already enforcing their laws on September 30, did not anticipate this occurrence. The agencies have determined that a conforming law that becomes effective on October 1 will enable a State to avoid a transfer of funds on that date. Accordingly, the agencies have amended the regulations to enable these States to certify that they have enacted a repeat intoxicated driver law that conforms to 23 U.S.C. 164 and the agencies' implementing regulations, and that the law will become effective and be enforced by October 1 of the following fiscal year.

As explained in the interim final rule, section 164 provides that the Secretary must transfer a portion of a State's Federal-aid highway funds apportioned under sections 104(b)(1), (3), and (4) of Title 23 of the United States Code, for the National Highway System, Surface Transportation Program and Interstate System, to the State's apportionment under section 402 of that title, if the State does not meet certain statutory requirements.

The interim rule indicated that, in accordance with the statute, the amount to be transferred from a non-conforming State will be calculated based on a percentage of the funds apportioned to the State under each of sections 104(b)(1), (3) and (4). However, the actual transfers need not be drawn evenly from these three sources. The transferred funds may come from any one or a combination of the apportionments under sections 104(b)(1), (3) and (4), as long as the total amount meets the statutory requirement.

One commenter noted that the interim rule did not specify which State agency has authority to decide from which category funds should be transferred. The agencies believe that, because the decision concerning which of the three highway apportionments should lose funds solely affects State Department of Transportation (DOT) programs, the State DOT should have authority to inform the FHWA of any changes in distribution. The agencies have added language to the final rule, in the section on Transfer of Funds, indicating that on October 1, the FHWA will make the transfers based on a proportionate amount, then the State's Department of Transportation will be given until October 30 to notify the FHWA if they would like to change the distribution among sections 104(b)(1), (3) and (4).

The interim rule indicated that the funds transferred to section 402 could be used for alcohol-impaired driving countermeasures or directed to State and local law enforcement agencies for the enforcement of laws prohibiting driving while intoxicated, driving under the influence or other related laws or regulations. In addition, the interim final rule indicated that States may elect to use all or a portion of the transferred funds for hazard elimination activities under 23 U.S.C. 152.

NAGHSR, Michigan, Delaware and NCSL noted that the interim final rule did not specify which State agency has the authority to determine how transferred funds should be used. NAGSHR stated that “it is unclear whether these decisions are state department of transportation decisions, state highway safety office decisions, or both.” Michigan suggested that “it should be made clear that all affected state agencies are to participate, and that states' decisions may be guided by the traffic safety benefit returned by the investment.”

The agencies have determined that all of the affected State agencies should participate in deciding how transferred funds should be directed. Accordingly, the agencies have added language to the section on Use of Transferred Funds specifying that both the State DOT, which will “lose” the funds, and the State Highway Safety Office (SHSO), which will “gain” the funds must decide jointly.

The State DOT and SHSO officials will provide written notification of their funding decisions to the agencies, within 60 days of the transfer, identifying the amounts of apportioned funds to be obligated to alcohol-impaired driving programs, hazard elimination programs, and related planning and administration costs allowable under section 402. This process will permit account entries to be made. Joint decision making by the DOT and SHSO is the same process required by NHTSA and the FHWA for other TEA 21 programs in which Congress authorized flexible highway safety/highway construction funding choices—the section 157 Seat Belt Use Incentive Grant Program, the section 163.08 BAC Per Se Incentive Program and the section 154 Open Container Transfer Program.

This final rule will not have any preemptive or retroactive effect. The enabling legislation does not establish a procedure for judicial review of final rules promulgated under its provisions. There is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.

The agencies have determined that this action is not a significant action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation Regulatory Policies and Procedures. States can choose to enact and enforce a repeat intoxicated driver law, in conformance with Pub. Law 105-206, and thereby avoid the transfer of Federal-aid highway construction funds. Alternatively, if States choose not to enact and enforce a conforming law, their funds will be transferred, but not withheld. Accordingly, the amount of funds provided to each State will not change.

In addition, the costs associated with this rule are minimal and are expected to be offset by resulting highway safety benefits. The enactment and enforcement of repeat intoxicated driver laws should help to reduce impaired driving, which is a serious and costly problem in the United States. Accordingly, further economic assessment is not necessary.

In compliance with the Regulatory Flexibility Act (Pub. Law 96-354, 5 U.S.C. 601-612), the agencies have evaluated the effects of this action on small entities. This rulemaking implements a new program enacted by Congress in the TEA 21 Restoration Act. As the result of this new Federal program and the implementing regulations, States will be subject to a transfer of funds if they do not enact and enforce repeat intoxicated driver laws that provide for certain specified mandatory penalties. This final rule will affect only State governments, which are not considered to be small entities as that term is defined by the Regulatory Flexibility Act. Thus, we certify that this action will not have a significant impact on a substantial number of small entities and find that the preparation of a Regulatory Flexibility Analysis is unnecessary.

This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act of 1980, 44 U.S.C. Chapter 35, as implemented by the Office of Management and Budget (OMB) in 5 CFR part 1320.

The agencies have analyzed this action for the purpose of the National Environmental Policy Act, and have determined that it will not have a significant effect on the human environment.

The Unfunded Mandates Reform Act of 1995 (Pub. Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of final rules that include a Federal mandate likely to result in the expenditure by the State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. In the interim final rule, the agencies indicated that the section 164 program did not meet the definition of a Federal mandate, because the resulting annual expenditures were not expected to exceed $100 million and because the States were not required to enact and enforce a conforming repeat intoxicated driver law.

NCSL asserted that the rule will result in an unfunded mandate. It stated that “the total cost to the states to enforce these repeat offender laws will exceed one hundred million dollars in cost.” NCSL noted that the UMRA requires agencies to prepare a written assessment of the anticipated costs and benefits of any unfunded Federal mandate and that NHTSA failed to do so. NCSL asserted also that NHTSA failed to consult with State officials to determine the financial and political ramifications of this regulatory proposal.

The agencies have determined that the rule will not result in an unfunded mandate because the section 164 program is optional to the States. States may choose to enact and enforce a conforming repeat intoxicated driver law and avoid the transfer of funds altogether. Alternatively, if States choose not to enact and enforce a conforming law, funds will be transferred, but no funds will be withheld from any State. Moreover, the agencies do not believe that the resulting cost to States from implementing conforming laws will be over $100 million. Prior to the passage of TEA 21, States already had enacted and were enforcing repeat intoxicated driver laws. Some of these States have amended their laws to conform to the new section 164 requirements, but such changes will not result in expenditures of over $100 million. For States that have amended their repeat intoxicated driver laws, the cost to enact such amendments will be minimal. There may be some costs to provide training to law enforcement or other officials or to educate the public about these changes, but these costs are not likely to be significant.

In the interim final rule, the agencies recommended that States incorporate into their enforcement efforts activities designed to inform law enforcement officers, prosecutors, members of the judiciary and the public about their repeat intoxicated driver laws. In addition, the agencies advised States to take steps to integrate their repeat intoxicated driver enforcement efforts into their enforcement of other impaired driving laws. If States take these steps, the cost to enforce such laws would likely be absorbed into the State's overall law enforcement budget because the States would not be required to conduct separate enforcement efforts to enforce their repeat intoxicated driver laws.

Accordingly, the agencies have determined that it is not necessary to prepare a written assessment of the costs and benefits, or other effects of the rule.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. Accordingly, a Federalism Assessment has not been prepared.

The Coast Guard encourages interested persons to participate in this rulemaking by submitting written data, views, or arguments. Persons submitting comments should include their names and addresses, identify this rulemaking [USCG 2000-7466] and the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and attachments in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing to the Docket Management Facility at the address under ADDRESSES. Persons wanting acknowledgment of receipt of comments should enclose stamped self-addressed postcards or envelopes.

The Coast Guard is publishing a direct final rule, the procedures for which appear in 33 CFR 1.05-55, because it anticipates no adverse comment. If no adverse comment or written notice of intent to submit one reaches the Docket Management Facility within the comment period specified in DATES, this rule will become effective as indicated. In that case, about 30 days before the effective date, the Coast Guard will publish a document in the Federal Register indicating that it received no adverse comment or written notice of intent to submit one and confirming that this rule will become effective as scheduled. However, if the Coast Guard receives a written adverse comment or written notice of intent to submit one, it will publish a document in the Federal Register announcing withdrawal of all or part of this rule ( e.g. , an amendment, a paragraph, or a section). If an adverse comment applies to only part of this rule and if removal of that part is possible without defeating the purpose of this rule, the Coast Guard may adopt as final those parts of this rule unaffected by the comment and withdraw the others. If the Coast Guard decides to proceed with a rulemaking following receipt of an adverse comment, it will publish a separate Notice of Proposed Rulemaking (NPRM) and provide a new opportunity for comment.

A comment is considered “adverse” if it explains why this rule would be inappropriate; including a challenge to the rule's underlying premise or approach, or why it would be ineffective or unacceptable without a change.

The Marine Safety Council of the Coast Guard recommended this rulemaking. The intent of the rule is to reduce the consumption of power and simplify the maintenance of private aids to navigation by allowing for the use of lanterns based on LEDs as well as on tungsten-incandescent lights.

The Coast Guard will allow private industry and owners of private aids to navigation to take advantage of recent changes in lighting technology—specifically the use of lanterns based on LEDs.

This direct 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 rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is not necessary.

This direct final rule would not impose any costs on the public. While it permits the use of lanterns based on LEDs as well as tungsten-incandescent lights, it does not require it.

Manufacturers of tungsten-incandescent lights also provide LED lights. This rule would not impose any costs on these manufacturers; it would instead expand a market for the LED lights they are already manufacturing.

Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq. ], the Coast Guard considered whether this direct final rule would have a significant economic impact on a substantial number of small entities. “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. The Small Business Administration (SBA) has set up size standards for each SIC code based on the number of employees or annual receipts. The only type of small entity that this rule would affect would be small businesses.

The Coast Guard performed a survey of the industry, and discovered that there are currently two major U.S. manufacturers of tungsten-incandescent lights used for aids to navigation. One of them is considered small by the size standards set up by the SBA. However, the impact of this rule would be positive because it would open new markets for other small business manufacturers who currently possess LED technology.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. It will evaluate comments submitted in response to this finding under the criteria in Regulatory Information.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], we want to assist small entities in understanding this direct final rule so that they can better evaluate its effect on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Dan Andrusiak, G-OPN-2, Coast Guard, telephone 202-267-0327.

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

The Coast Guard has analyzed this direct final rule under the principles and criteria contained in Executive Order 12612 and has determined that this rule does not have sufficient implications for federalism to warrant the preparation of a Federalism Assessment.

The Coast Guard considered the environmental impact of this direct final rule and concluded that, under figure 2-1, paragraph (34)(i) 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.

The CSX Railroad Drawbridge across the South Fork of the New River at Ft. Lauderdale, has a vertical clearance of 2 feet above mean high water (MHW) measured at the fenders in the closed position. On July 11, 2000 the owner, requested a deviation from the current operating regulation in 33 CFR 117.5 which requires the drawbridge to open promptly and fully when a request to open is given. This temporary deviation was requested to allow necessary repairs to the drawbridge in a critical time sensitive manner.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.5 for the purpose of repair completion of the drawbridge. Under this deviation, the CSX Railroad Drawbridge (South Fork of the New River) need not open. The deviation is effective on October 7, 2000 from 6:00 a.m. until 11:59 p.m.

The Florida East Coast Railway drawbridge across the Okeechobee Waterway at Stuart, has a vertical clearance of 7 feet above mean high water (MHW) measured at the fenders in the closed position and during construction will have a horizontal clearance of 50 feet. On September 8, 2000, Florida East Coast Railway, the drawbridge owner, requested a deviation from the current operating regulation in 33 CFR 117.5 which requires drawbridge to open promptly and fully when a request to open is given. This temporary deviation was requested to allow necessary repairs to the drawbridge in a critical time sensitive manner.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.35 for the purpose of repair completion of the drawbridge. Under this deviation, the Florida East Coast Railway Bridge need not open the bridge for short periods of time, approximately 30 to 45 minutes in duration. The deviation is effective for a period of 4 days beginning on October 9, 2000 and ending on October 12, 2000.

Under the formula mandated by 10 U.S.C. 16131(b) for fiscal year 2000, the rates of basic educational assistance under the Montgomery GI Bill—Selected Reserve payable to students pursuing a program of education full time, three-quarter time, and half time must be increased by 1.6%, which is the percentage by which the total of the monthly Consumer Price Index-W for July 1, 1998, through June 30, 1999, exceeds the total of the monthly Consumer Price Index-W for July 1, 1997, through June 30, 1998.

10 U.S.C. 16131(b) requires that full-time, three-quarter time, and half-time rates be increased as noted above. In addition, 10 U.S.C. 16131(d) requires that monthly rates payable to reservists in apprenticeship or other on-the-job training must be set at a given percentage of the full-time rate. Hence, there is a 1.6% raise for such training as well.

10 U.S.C. 16131(b) also requires that the Department of Veterans Affairs (VA) pay reservists training less than half time at an appropriately reduced rate. Since payment for less than half-time training became available under the Montgomery GI Bill—Selected Reserve in fiscal year 1990, VA has paid less than half-time students at 25% of the full-time rate. Changes are made consistent with the authority and formula described in this paragraph.

Nonsubstantive changes also are made for the purpose of clarity.

The changes set forth in this final rule are effective from the date of publication, but the changes in rates are applied from October 1, 1999, in accordance with the applicable statutory provisions discussed above.

Substantive changes made by this final rule merely reflect statutory requirements and adjustments made based on previously established formulas. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

The Secretary of Defense, the Commandant of the Coast Guard, and the Secretary of Veterans Affairs hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule directly affects only individuals and does not directly affect small entities. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

The Office of Management and Budget has reviewed this final rule under Executive Order 12866.

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

There is no Catalog of Federal Domestic Assistance number for the program affected by this final rule.

Environmental Protection Agency (EPA) approves the Thurston County PM-10 area maintenance plan and redesignation request from nonattainment to attainment as revisions to the Washington State Implementation Plan.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 4, 2000, without further notice unless the Agency receives adverse comments by November 3, 2000.

If the EPA receives adverse comments, then EPA will publish a Federal Register document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 4, 2000, and no further action will be taken on the proposed rule.

Today's rulemaking announces two actions being taken by EPA related to air quality in the State of Washington. These actions are taken at the request of the Governor of Washington in response to Clean Air Act (Act) requirements and EPA regulations.

First, EPA approves the PM-10 maintenance plan for the Thurston County nonattainment area and incorporates this plan into the Washington State Implementation Plan (SIP).

Second, EPA redesignates Thurston County from nonattainment to attainment for PM-10. This redesignation is based on validated monitoring data and projections of ambient concentrations made in the maintenance plan's demonstration. EPA believes the area will continue to meet the National Ambient Air Quality Standards for PM-10 for at least ten years beyond this redesignation, as required by the Act.

The Clean Air Act requires States to keep ambient concentrations of specific air pollutants below certain thresholds to provide an adequate margin of safety for public health and welfare. These maximum concentrations are established by EPA and known as the National Ambient Air Quality Standards, or NAAQS.

The State's plan for attaining the NAAQS are outlined in its State Implementation Plan, or SIP. The SIP is a planning document that, when implemented, is designed to ensure the attainment of the NAAQS. Each State currently has a SIP in place, and the Act requires that SIP revisions be made periodically.

SIPs include the following: (1) Inventories of emissions from point, area, and mobile sources; (2) relevant statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to ensure the area will attain the NAAQS; and (4) contingency measures to be implemented if an area fails to attain or make reasonable progress toward attainment by the required date.

The SIP must be presented to the public in a hearing and approved by the Governor of the State or appointed designee prior to submittal to EPA. The approved SIP serves as the State's commitment to actions that will reduce or eliminate air quality problems. Once approved by EPA, the SIP becomes part of the Code of Federal Regulations and is Federally enforceable. Any subsequent changes must go through the formal SIP revision process specified in the Act.

Washington submitted their original SIP on January 28, 1972 and it was subsequently approved by EPA. The Thurston County PM-10 maintenance plan and redesignation request was submitted as a revision to the SIP on August 16, 1999. This revision is the subject of today's action.

As stated previously, National Ambient Air Quality Standards (NAAQS) are safety thresholds for certain ambient air pollutants set by EPA to protect public health and welfare. Suspended particulate matter is one of these criteria air pollutants regulated by EPA by way of these health-based national standards.

Particulate matter causes adverse health effects by penetrating deep in the lung, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.

On July 1, 1987 (52 FR 24634), the Environmental Protection Agency (EPA) revised the National Ambient Air Quality Standards (NAAQS) for particulate matter with a new indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10). (See 40 CFR 50.6).

The 24-hour primary PM-10 standard is 150 micrograms per cubic meter (μg/m\3\), with no more than one expected exceedance per year. The annual primary PM-10 standard is 50 μg/m 3 expected annual arithmetic mean. The secondary PM-10 standards are identical to the primary standards.

The Thurston County PM-10 area consists of the adjoining cities of Olympia, Lacey, and Tumwater, Washington. Geographically, the area is characterized by low rolling terrain with hills rising higher toward its southern and western boundaries. Land use is primarily residential and commercial with several office parks and very little industry. The surrounding hills trap pollutants during stable meteorological conditions that occur frequently in the late fall and winter.

Residential wood combustion is the largest source of PM-10 in the nonattainment area. Re-suspended road dust is also a significant, but smaller, source. All other sources are considered insignificant. The Thurston County PM-10 attainment plan, approved in 1993, identifies a 24-hour concentration of 286 μg/m 3 as representative of worst case PM-10 conditions before the use of any emission controls. For a discussion of the initial Thurston County PM-10 SIP see 58 FR 40056 (July 27, 1993). Because the health based standard is set at 150 μg/m 3 , this clearly shows that Thurston County experienced severely impaired air quality prior to implementing the control strategy in the attainment plan. As presented in the maintenance demonstration, with implementation of the control strategy, modeling predicts maximum concentrations that are below the 24-hour NAAQS of 150 μg/m 3 through the year 2010.

On August 7, 1987 (52 FR 29383), EPA identified the Thurston County, Washington area as a PM-10 “Group I” area of concern, i.e., an area with a 95% or greater likelihood of violating the PM-10 NAAQS and requiring substantial SIP revisions. Subsequent monitoring data and emission inventory estimates confirmed that the area experienced episodes where the 24-hour PM-10 NAAQS was exceeded, violating the health-based standard. The area was subsequently designated as a moderate PM-10 nonattainment area upon enactment of the Clean Air Act Amendments of 1990 (November 15, 1990).

Title I, section 107(d)(3)(D) of the Act as explained in detail in the General Preamble to Title I (57 FR 13498 (April 16, 1992) hereafter referred to as the General Preamble), allow the Governor of a State to request the redesignation of an area from nonattainment to attainment. Under a cover letter dated August 16, 1999, the State submitted a maintenance plan and redesignation request for the Thurston County PM-10 nonattainment area.

The criteria used to review the redesignation request are derived from the Act, General Preamble, and the following policy and guidance memorandum from John Calcagni, September 4, 1992, Procedures for Processing Requests to Redesignate Areas to Attainment. Section 107(d)(3)(E) of the Act states that an area can be redesignated to attainment if the following conditions are met:

1. EPA has determined that the NAAQS have been attained.

2. The applicable implementation plan has been fully approved by EPA under section 110(k).

3. EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions.

4. The State has met all applicable requirements for the area under section 110 and part D.

5. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A.

Demonstrating that an area has attained the PM-10 NAAQS involves submittal of ambient air quality data from an ambient air monitoring network representing peak PM-10 concentrations, which is recorded in the Aerometric Information Retrieval System (AIRS). The area must show that the average number of expected exceedances per year is less than or equal to one. (40 CFR 50.6) To make this determination, three consecutive years of complete ambient air quality, collected in accordance with EPA methodologies, must be used.

There is one PM-10 ambient air quality monitoring site in Thurston County. The Olympic Air Pollution Control Agency (OAPCA) has operated this monitor, located at the Mt. View Elementary School, since November 1985.

The Washington State Department of Ecology submitted ambient air quality data and supporting documentation from this monitoring site for the 1985-1995 period demonstrating that the area has attained the PM-10 NAAQS. Also, supplemental data was submitted under separate cover by the Olympic Air Pollution Control Authority for 1996-1999. This air quality data was quality assured and entered into AIRS. These data are summarized in the following table:

As shown above, an exceedance of the 24-hour NAAQS was not recorded at the Mt. View Elementary School site between 1989 and 1999. Also, the State has adequately demonstrated attainment of the 24-hour PM-10 NAAQS through the dispersion modeling and the attainment of the annual PM-10 NAAQS through emissions inventory comparison (this is discussed in greater detail later in this action). Thus, the area is considered in attainment of the PM-10 NAAQS, easily meeting the requirement of three consecutive years of clean data.

Yes. Those States containing initial moderate PM-10 nonattainment areas were required to submit a SIP by November 15, 1991, which implemented reasonably available control measures (RACM) by December 10, 1993, and demonstrated attainment of the PM-10 NAAQS by December 31, 1994. The SIP for the area must be fully approved under section 110(k) of the Act, and must satisfy all requirements that apply to the area.

On July 27, 1993, (58 FR 40056), EPA approved the Thurston County PM-10 nonattainment area SIP originally submitted by the State on February 17, 1989, and supplemented on November 13, 1991.

Yes. The State must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions. In making this showing, the State must demonstrate that air quality improvements are the result of actual enforceable emission reductions. This estimate should consider emission rates, production capacities, and other related information. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic.

The attainment plan and the maintenance plan identify residential wood combustion as the primary source of PM-10 emissions in the area, citing a 1986 aerosol characterization study. Chemical mass balance analysis of the filters collected at the Mt. View Elementary School show that woodsmoke contributes 80-95% of ambient PM-10 concentrations on the high pollution days analyzed. The State concluded that the most important control measures for achieving attainment are those that reduce emissions from residential wood combustion.

In response, Thurston County has implemented a residential wood burning curtailment program, a public education program, emission standards for new woodstoves, and restrictions on certain fuels since the submittal of the 1989 attainment plan SIP. The attainment demonstration (discussed in further detail below) clearly shows that these controls are responsible for the attainment of the NAAQS. The continued implementation of these and other controls in the maintenance plan will assure continued attainment of the NAAQS.

The State shows that the reduction of 136 μg/m 3 needed for attainment, or 6841 kg PM-10 emissions per day, is a result of implementing the federally enforceable control measures (see the Technical Support Document accompanying this Federal Register document for additional description of the control measures). Thus, the emission reductions responsible for attainment of the NAAQS are permanent and enforceable.

Yes. The September 1992 Calcagni memorandum explains that for redesignation purposes a State must meet all of the applicable section 110 and part D planning requirements. Thus, EPA interprets the Act to mean that before EPA may approve a redesignation request, the applicable programs under section 110 and part D, that were due prior to the submittal of a redesignation request, must be adopted by the State and approved by EPA into the SIP. How the State has met these requirements is discussed in detail below.

Section 110(a)(2) of the Act contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the State after reasonable notice and public hearing; provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program; provisions for part C—Prevention of Significant Deterioration (PSD) and part D—New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring, and reporting; provisions for modeling; and provisions for public and local agency participation. See the General Preamble for further explanation of these requirements.

For purposes of redesignation, the Washington SIP was reviewed to ensure that all requirements under the Act were satisfied. 40 CFR 52.2473, further evidences that the Washington SIP was approved under section 110 of the Act and found that the SIP satisfied all part D, Title I requirements (46 FR 45607, September 14, 1981).

Part D consists of general requirements applicable to all areas which are designated nonattainment based on a violation of the NAAQS. The general requirements are followed by a series of subparts specific to each pollutant. All PM-10 nonattainment areas must meet the applicable general provisions of subpart 1 and the specific PM-10 provisions in subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” The following paragraphs discuss these requirements as they apply to the Thurston County area.

Section 172(c) contains general requirements for nonattainment plans. A thorough discussion of these requirements may be found in the General Preamble. EPA anticipates that areas will already have met most or all of these requirements to the extent that they are not superseded by more specific part D requirements. The requirements for reasonable further progress, identification of certain emissions increases, and other measures needed for attainment will not apply to redesignations because they only have meaning for areas not attaining the standard. The requirements for an emission inventory will be satisfied by the inventory requirements of the maintenance plan. The requirements of the part D New Source Review (NSR) program will be replaced by the part C Prevention of Significant Deterioration (PSD) program for PM-10 upon the effective date of this redesignation action. The Federal PSD regulations found in 40 CFR 52.21 are the PSD rules in effect in Washington.

The Thurston County area is classified as a moderate nonattainment area. Therefore, part D, subpart 4, section 189(a) requirements apply. The requirements which came due prior to the submission of the request to redesignate the Thurston County area must be fully approved into the SIP before redesignating the area to attainment. These requirements are discussed below:

(a) Provisions to assure that RACM shall be implemented by December 10, 1993;

(b) Either a demonstration that the plan will provide for attainment as expeditiously as practicable but no later than December 31, 1994, or a demonstration that attainment by that date is impracticable;

(c) Quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994; and

(d) Provisions to assure that the control requirements applicable to major stationary sources of PM-10 also apply to major stationary sources of PM-10 precursors except where the Administrator determines that such sources do not contribute significantly to PM-10 levels which exceed the NAAQS in the area.

As previously stated, EPA approved the Thurston County PM-10 SIP, which met the initial requirements of the 1990 amendments for moderate PM-10 nonattainment areas, on July 27, 1993, (58 FR 40056). Other provisions were due at a later date.

States with initial PM-10 nonattainment areas were required to submit a permit program for the construction and operation of new and modified major stationary sources of PM-10 by June 30, 1992. States also were to submit contingency measures by November 15, 1993, which become effective without further action by the State or EPA, upon a determination by EPA that the area has failed to achieve RFP or to attain the PM-10 NAAQS by the applicable statutory deadline. See sections 172(c)(9) and 189(a) and 57 FR 13543-13544.

The State has presented an adequate demonstration that it has met the requirements applicable to the area under section 110 and part D. EPA approved Washington State's NSR regulations effective June 2, 1995. EPA approved, as part of the Thurston County PM-10 attainment plan, a contingency measure that would ban the use of uncertified woodstoves in the Thurston county nonattainment area if the area failed to attain or maintain the standard. State law allowed this regulation to take effect on or after July 1, 1995.

Yes. Section 107(d)(3)(E) of the Act stipulates that for an area to be redesignated, EPA must fully approve a maintenance plan which meets the requirements of section 175A. Section 175A defines the general framework of a maintenance plan, which must provide for maintenance of the relevant NAAQS in the area for at least 10 years after redesignation. The following is a list of core provisions required in an approvable maintenance plan.

(a) Plan revision: the maintenance plan must provide for the maintenance of the NAAQS for ten years beyond redesignation.

(b) Subsequent plan revisions: Eight years after redesignation, the maintenance plan must provide for additional revisions as needed to maintain the standard for an additional ten years.

(c) Nonattainment requirements applicable pending plan approval: all provisions and controls in place as part of the nonattainment plan must be implemented until final redesignation to attainment.

(d) Contingency provisions: the maintenance plan must include contingency control measures which will go into effect automatically to correct any future violation of the NAAQS. These provisions must include a requirement that the State will implement all measures contained in the nonattainment area SIP.

The State should develop an attainment emissions inventory to identify the level of emissions in the area which is sufficient to attain the NAAQS. Where the State has made an adequate demonstration that air quality has improved as a result of the SIP, the attainment inventory will generally be the actual inventory at the time the area attained the standard. This inventory should be consistent with EPA's most recent guidance on emission inventories for nonattainment areas available at the time and should include the emissions during the time period associated with the monitoring data showing attainment.

For the Thurston County maintenance plan, updated, gridded based year (1995) and future year (2010) emission inventories were compiled to show emission levels consistent with attainment and continued maintenance of the PM-10 standard. The previous inventories for the area prepared for a base year of 1985 consisted primarily of emissions from woodsmoke sources. Updated emission factors and sources of activity data were used to develop the revised PM-10 emission inventories.

The inventories were gridded and temporally allocated for use in air quality modeling. This is discussed in further detail below.

The State has adequately developed an attainment emissions inventory for 1995 that identifies the levels of emissions of PM-10 in the area that are consistent with attainment of the NAAQS.

A State may generally demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. Under the Act, PM-10 areas were required to submit modeled attainment demonstrations to show that proposed reductions in emissions will be sufficient to attain the applicable NAAQS. For these areas, the maintenance demonstration should be based upon the same level of modeling.

The State has adequately demonstrated attainment of the 24-hour PM-10 NAAQS through the dispersion modeling and the annual PM-10 NAAQS through emissions inventory comparison ( i.e. , rollback). The dispersion modeling analysis was based upon the guidelines established by EPA for the regulatory application of the urban airshed model for area wide sources.

Inputs for this model were developed using available meteorological, emissions, air quality, and land use data. The domain modeled was 30 x 27 grids, 1 km each. These parameters were chosen based on future and known emission sources, location of meteorological sites, and the wind direction during typical PM-10 episodes. Air quality inputs were based on hourly tapered element oscillating microbalance (TEOM) data collected at the Mt. View Elementary School site and assumed to represent uniform concentrations across the domain. The model used was a base case scenario that took place on January 2-3, 1995. Day specific emission rates for point sources, activity patterns, and meteorological data were used. The emission reduction benefits from the burn ban implemented on that day were also considered.

After comparing the concentrations generated by the model for January 2-3, 1995 with the actual monitored data collected on those days, the State concluded that the model adequately characterized the PM-10 episode. Based on this success, the model was used to generate future year concentrations.

The 2010 model was run using the projected inventory and the inputs from the 1995 run. Higher concentrations were simulated for 2010 than for 1995, but the maximum concentration in any one grid, 149.9 μg/m 3 , does not exceed the 24-hour standard. ( Note: despite the fact that this maximum value is very near the standard of 150.0 μg/m 3 , EPA is confident that the area will maintain the standard based on the area's history and the overall strength of the maintenance plan.)

When the model was run without the benefits of the burn ban, the grid cell over the urban core exceeded the standard with a concentration of 177.7 μg/m 3 . Thus, the model demonstrates that the continued implementation of the control measures in the attainment plan are needed to demonstrate maintenance of the 24-hour standard.

The emissions inventory comparison between attainment and forecast years demonstrated continued attainment of the annual PM-10 standard. The projected annual average was 25.6 μg/m 3 in 2010, well within the standard of 50.0 μg/m 3 . This concentration was based on maximum allowable point source emissions and is therefore somewhat conservative.

The State has adequately demonstrated attainment of the 24-hour PM-10 NAAQS through the dispersion modeling and the annual PM-10 NAAQS through emissions inventory comparison ( i.e. , rollback). The dispersion modeling analysis was based upon the guidelines established by EPA for the regulatory application of the urban airshed model for area wide sources (EPA, 1991, 1992).

Once an area has been redesignated, the State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The maintenance plan should contain provisions for continued operation of air quality monitors that will provide such verification. In its submittal, the State commits to continue to operate and maintain the network of PM-10 monitoring stations necessary to verify ongoing compliance with the PM-10 NAAQS.

Section 175A of the Act also requires that a maintenance plan include contingency provisions, as necessary, to promptly address any violation of the NAAQS that occurs after redesignation. These contingency measures are distinguished from those generally required for nonattainment areas under section 172(c)(9) which are discussed above. However, if the contingency measures in a nonattainment SIP have not been implemented at the time the area is redesignated to attainment and the contingency measures included a requirement that they be implemented prior to redesignation, then they can be carried over into the area's maintenance plan.

The major contingency measure in the Thurston County PM-10 attainment plan, and carried forward in the maintenance plan, further reduced residential woodsmoke emissions. Under this measure, RCW 70.94.477(2), Olympic Air Pollution Control Authority can limit wood burning devices to fireplaces, certified woodstoves, and pellet stoves in a specific geographical area.

The State believes that additional contingency measures beyond tighter residential wood combustion regulations are not needed in the maintenance plan to assure prompt correction of a violation. However, the plan cites many additional options the State could use to control major sources of PM-10 if needed. These include additional wood seasoning rules, stove retrofits, weatherization, utility rate incentives, stove replacement, stove licensing, stove and fireplace ban, woodstove removal, voluntary curtailment, asphalt shoulders, street maintenance, sanding reduction, control of construction entrainment, new paving, and others. EPA finds the State plan includes adequate contingency measures in the maintenance plan to meet the requirement of 175A.

Under section 176(c) of the Act, transportation plans, programs, and projects in nonattainment or maintenance areas that are funded or approved under 23 U.S.C. or the Federal Transit Act, must conform to the applicable SIPs. However, a motor vehicle emission budget was not included in the 1998 attainment plan because at the time of the attainment demonstration, it was believed that motor vehicle emissions were not a significant factor for attainment. In the maintenance plan, motor vehicle emissions are a much higher percentage of the total emission inventory. Therefore, it is more important to monitor growth of motor vehicle emissions in the air quality planning process. The maintenance plan includes a motor vehicle emissions budget which results in the need for conformity determinations for PM-10 on future Transportation Improvement Plans and Regional Transportation Plans.

Transportation conformity determinations must be consistent with the motor vehicle emissions budget of 776.36 tons of PM-10 per year. The mobile source emissions are a combination of vehicle exhaust, tire wear, and road dust.

EPA has reviewed the maintenance plan as a revision to the Washington SIP and the adequacy of the State's request to redesignate the Thurston County PM-10 nonattainment area to attainment. EPA finds that the submittal sufficiently meets the requirements for redesignation requests. Therefore, the EPA approves Washington's redesignation request for the Thurston County PM-10 area and approves the maintenance plan as a revision to the Washington SIP.

EPA approves the PM-10 maintenance plan for the Thurston County, Washington PM-10 nonattainment area and redesignates the area from nonattainment to attainment for PM-10.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to any SIP shall be considered separately in light of specific technical, economic, and environmental factors, and in relation to relevant statutory and regulatory requirements.

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

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

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

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

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This 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, 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Additionally, redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 4, 2000 unless EPA receives adverse written comments by November 3, 2000.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 December 4, 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).)

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that South Carolina's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant South Carolina Final authorization to operate its hazardous waste program with the changes described in the authorization application. South Carolina has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in South Carolina, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in South Carolina subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. South Carolina has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports

• Enforce RCRA requirements and suspend or revoke permits

• Take enforcement actions regardless of whether the State has taken its own actions

This action does not impose additional requirements on the regulated community because the regulations for which South Carolina is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the state program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the state program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

South Carolina initially received Final authorization on November 8, 1985, effective November 22, 1985 (50 FR 46437) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on September 8, 1988, effective November 7, 1988 (53 FR 34758), February 10, 1993, effective April 12, 1993 (58 FR 7865), November 29, 1994, effective January 30, 1995, and April 26, 1996, effective June 25, 1996 (61 FR 18502).

On September 11, 1995, South Carolina submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that South Carolina's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. As a result of today's final authorization of South Carolina for the February 16, 1993 Corrective Action Management Unit (CAMU) rule, the State will be eligible for interim authorization-by-rule process (see August 22, 2000, 65 FR 51080, 51115). South Carolina will also become eligible for conditional authorization if that alternative is chosen by EPA in the final CAMU amendments rule. Therefore, we grant South Carolina Final authorization for the following program changes:

EPA cannot delegate the Federal requirements at: 40 CFR 268.5 (h)(2)(ii), 268.5(h)(2)(iv), 268.5(h)(2)(v), 268.5(h)(2)(vi) and 268.42(b). Although South Carolina has adopted these requirements verbatim from the federal regulations—SCHWM R.61-79.268.5 (h)(2)(ii), R.61-79.268.5 (h)(2)(iv), R.61-79.268.5 (h)(2)(v), R.61-79.268.5 (h)(2)(vi) and R.61-79.268.42(b), EPA will continue to implement those requirements.

South Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. At the time the State Program is approved in the new areas, EPA will suspend issuance of Federal permits in the State and terminate those Federal permits issued pursuant to 40 CFR 124.5 and 271.8 upon effectiveness of equivalent state permit conditions. EPA will also transfer any pending permit applications, completed permits, or pertinent file information to the State within thirty (30) days of the approval of the State Program in conformance with the conditions of this agreement. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which South Carolina is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart PP for this authorization of South Carolina's program until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by state law. Accordingly, I certify that this action 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 action authorizes pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action 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 action 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 authorizes state requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document 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 in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective December 4, 2000.

This is a summary of the Commission's Report and Order in IB Docket No. 99-81; FCC 00-302, adopted August 14, 2000 and released on August 25, 2000. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.

The Federal Communications Commission has adopted rules for the 2 GHz (1990-2025MHz/2165-2200 MHz) mobile satellite services (MSS). These systems will provide mobile voice, data, Internet and other services to U.S. consumers for communications in the United States and around the world. The systems under consideration include geostationary and non-geostationary orbit systems.

The Commission adopted an innovative band arrangement that can accommodate the multiple and technically-diverse systems that have requested authorization and described the method to be used for licensing. Pursuant to the Commission's new rules, each authorized system will receive an equal share of the available frequencies. A licensee will select the specific frequencies in which its primary service operations will take place at the time it has launched one satellite into its intended orbit. In addition, because there are a number of incumbent terrestrial services ( e.g. , broadcast auxiliary service and and fixed microwave service) in the 2 GHz MSS bands, each authorized system will have flexibility to operate at other frequencies in the band. This flexibility may lower the costs of relocating incumbent systems and facilitate quicker deployment of service. To encourage delivery of mobile satellite services to rural service areas, the Commission reserved an additional spectrum segment to be awarded in equal shares to systems demonstrating that a percentage of their capacity is contracted with service providers that offer service to consumers in rural and unserved service areas.

The Commission found that it was not necessary to apply financial qualification requirements to the applicants because there is sufficient spectrum to accommodate all of the proposed systems. 2 GHz MSS licenses will be for a fifteen-year period. Consistent with its past spectrum management policies, the Commission is requiring that system proponents enter non-contingent satellite manufacturing contracts within one year of authorization and launch of authorized 2 GHz MSS systems no later than six years from the date of authorization. System proponents will have to complete critical design review (CDR) within two years of authorization. The rules require that physical construction of all satellites in the system commence within two and a half years of authorization (non-geostationary systems) and three years of authorization (geostationary systems). Construction and launch of the first two satellites must be complete within three and a half years of grant for non-geostationary systems and five years for geostationary systems. Non-compliance with implementation milestones will result in cancellation of the authorization. Failure to file a timely certification of milestone compliance, or filing disclosure of non-compliance, will result in automatic cancellation of an operator's system authorization with no further action required on the Commission's part.

In addition, the new rules require disclosure, prior to authorization, of orbital debris mitigation measures for 2 GHz MSS systems. The Commission also addressed provision of distress and safety communications and 911 services, and stated that it would study this issue in greater detail in the pending Global Mobile Personal Communications by Satellite proceeding.

The system proponents are required to amend their proposals to comply with the rules adopted on or before November 3, 2000. Following a public comment period, qualified systems will be authorized to operate.

This Report and Order establishes a spectrum authorization approach to accommodate all proposed 2 GHz MSS systems, and service rules to govern the 2 GHz MSS systems. These actions are designed to assign the 2 GHz MSS spectrum to applicants, or reserve the 2 GHz MSS spectrum in the case of letter of intent filers, in an efficient manner. At the same time, these rules are designed to ensure systems implement their proposals in a manner that serves the public interest and results in the continued deployment of mobile satellite services to the public, with minimal disruption to existing 2 GHz band permittees and licensees.

There were no comments which solely discussed or addressed the IRFA. The Commission has nonetheless considered any potential significant economic impact of the rules on small entities, and has designed its rules to reduce regulatory burdens on these entities accordingly.

The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit fixed-satellite or mobile satellite service operators. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a small entity is one with $11.0 million or less in annual receipts. 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4899. According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified, which could potentially fall into the 2 GHz MSS category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. U.S. Bureau of Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications, Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table 2D, Employment Size of Firms: 1992, SIC Code 4899 (issued May 1995). The rules adopted in this Report and Order apply only to entities providing 2 GHz mobile satellite service. At least one of the 2 GHz MSS system proponents may be considered a small business at this time. Small businesses often do not have the financial ability to become 2 GHz MSS system operators because of the high implementation costs associated with satellite systems and services. By the time of system implementation, we expect that the one small entity will no longer be considered a small business due to the capital requirements for launching and operating its proposed system. Therefore, because of the high implementation costs of providing 2 GHz MSS, we believe that this Report and Order will have no significant impact on small entities.

The rules adopted in the Report and Order affect those entities applying for 2 GHz MSS space station and earth station authorizations and those participating in assignment of 2 GHz MSS spectrum. As an initial matter, the nine 2 GHz MSS system proponents under consideration in this Report and Order are required to submit amendments to their previously-filed applications or letters of intent, to conform their proposed systems to the spectrum authorization and service rules adopted herein, including an orbital debris statement. The adopted rules also require each authorized 2 GHz MSS system to notify the Commission that it has met construction milestones, notify the Commission as to which spectrum block it chooses as its preferred spectrum block at the time that the first satellite in its system reaches its intended orbit, and, if it desires additional spectrum under the rural service initiative, notify the Commission of how it has achieved the required rural service criteria. Once operational, the 2 GHz MSS systems may need to coordinate with each other the use of spectrum outside of its preferred spectrum block. These negotiations are likely to require the skills of engineers to evaluate the technical requirements of co-frequency spectrum sharing and/or adjacent frequency operation on a non-interference basis.

In developing the rules and policies adopted in this Report and Order, the Commission has attempted to minimize the burdens on all entities in order to allow maximum participation in the 2 GHz MSS market, while achieving the item's other objectives. The Commission considered band arrangements that would have assigned specified blocks of spectrum based on modulation technology ( i.e., code division multiple access or time division multiple access). Similarly, the Commission considered Globalstar's suggested band arrangement that would have required all systems to pre-negotiate a sharing architecture. The Commission rejected these alternatives, in part because these alternatives would have required all 2 GHz MSS operators to choose their technological parameters immediately, rather than allowing systems to optimize designs in order to promote innovation and reduce the economic impact of system build-out. In addition, to reduce the 2 GHz MSS operators' incumbent relocation costs, the Commission will exempt any 2 GHz MSS operator from relocation obligations if it is capable of sharing spectrum on a non-interference basis with the existing incumbent operations.

This Report and Order contains a new or modified information collection. The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Comments on emergency request for approval of information collections are due on or before October 25, 2000; public and agency comments on the regular request for approval of the information collections are due on or before December 4, 2000.

Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarify of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. These comments on both regular and emergency requests for approval of the information collection should be submitted to Judy Boley at 445 12th Street S.W., Rm. 1-C804, Washington DC 20554 or via internet at jboley@fcc.gov; phone 202-418-0214. In addition, comments on the emergency request for approval of the information collections should be submitted to Edward C. Springer, OMB Desk Officer, Rm. 10236 NEOB, 725 17th Street, NW., Washington, DC 20503, or via the Internet to Edward.Springer@omb.eop.gov.

OMB Approval Number: 3060-XXXX.

Title: 2 GHz Mobile Satellite Service Reports.

Form No.: NA.

Type of Collection: New Collection.

Respondents: Business or other for-profit.

Number of Respondents: 9.

Estimated Time for Response: 3 hours.

Total Annual Burden: 27 hours.

Estimated Annual Reporting and Recordkeeping Cost Burden: $14,000.

Needs and Uses: The information will be used by the Federal Communications Commission (FCC) and interested members of the public to ensure compliance with the rules adopted for the 2 GHz mobile satellite service. Specifically, the rules require disclosure in the form of a narrative statement, through amendments to applications or letters of intent, of orbital debris mitigation design and operational strategies and a casualty risk assessment if planned post-mission disposal involves atmospheric re-entry of spacecraft. This requirement will permit the Commission and the public to comment on each system's design. 2 GHz mobile satellite systems receiving expansion spectrum as part of the rural and unserved areas spectrum incentive must provide a report on the actual number of subscriber minutes originating or terminating in unserved areas as a percentage of the actual U.S. system use. This rule will permit the Commission to verify that service is being provided in rural and unserved areas. In addition, system proponents will have to complete critical design review (CDR) within two years of authorization. CDR is a new milestone for satellite services and will permit the Commission to more closely monitor system construction. Without such information, the FCC could not determine whether satellite licenses are operating in conformance with its rules.

Pursuant to Sections 4(i), 7, 302, 303(c), 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Section 154(i), 157, 302, 303(c), 303(e), 303(f) and 303(r), this Report and Order Is Adopted and that part 25 of the Commission's Rules Is Amended and is effective November 3, 2000.

The applicants and LOI filers will be required to file conforming amendments and all necessary fees no later than November 3, 2000 for continued consideration in this processing round.

The Regulatory Flexibility Analysis, as required by Section 604 of the Regulatory Flexibility Act, Is Adopted.

The Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Report and Order, MM Docket No. 00-22, adopted September 13, 2000, and released September 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-57, adopted September 13, 2000, and released September 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a summary of the Commission's Report and Order, MM Docket No. 00-26, adopted September 13, 2000, and released September 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.