The Harbor Maintenance Fee was created by provisions of the Water Resources Development Act of 1986 (26 U.S.C. 4461 et seq. ) (“the Act”), as amended, and implemented through interim regulations, published in the Federal Register as T.D. 87-44 on March 30, 1987 (52 FR 10198). The Act authorizes the Customs Service to assess a harbor maintenance fee for port use at certain ports by commercial vessels which load or unload merchandise or passengers, unless specifically exempted. By assessing a charge for port use, the Act causes those who benefit from the maintenance of a Federal port or harbor to share in the cost of that maintenance.

It is necessary for there to be a time limit within which a refund claim can be submitted to Customs to assure an efficient reasonable final resolution of refund claims.

In a case decided by the United States Court of Appeals for the Federal Circuit on February 28, 2000, Swisher International, Inc. v. United States, No. 99-1277 (February 28, 2000), the court held that there was “no generic limitation period on requesting [harbor maintenance fee] refunds” because Customs did not set a time limit for requesting refunds in the applicable regulations. The court went on to say that “Customs was free to impose time limits on the filing of [harbor maintenance fee] refund requests * * * and it remains free to alter the regulation to impose a time limit in the future.”

Customs is acting on the court's advice and proposing to amend the Customs Regulations by establishing a one year time limit for the filing of a refund request for quarterly harbor maintenance fee payments. The one year limit for a refund request will commence at the payment date to Customs. The payment date for quarterly harbor maintenance fee payments mailed to Customs at a post office box is the date the payment to the post office box is processed to Customs account. Section 24.24(e)(4) of the Customs Regulations (19 CFR 24.24(e)(4)) is proposed to be amended to add this time limitation.

This proposed one year time limitation is only applicable to requests for refunds for harbor maintenance fees that are paid quarterly. The proposed limitation is not applicable to requests for refunds of harbor maintenance fees that were paid in accordance with the normal Customs collection procedures for imported merchandise set forth in §§ 24.1 and 141.1 (19 CFR 24.1 and 141.1). Section 24.24(e)(2)(ii), Customs Regulations describes those harbor maintenance fees that are paid in accordance with normal duty collection procedures for imported merchandise. If a harbor maintenance fee is paid in accordance with normal duty collection procedures for imported merchandise, a refund may be sought of that fee in accordance with the procedure that is used for seeking a refund of a duty payment. Additionally, requests for refunds of payments made quarterly that are properly filed with Customs prior to this proposed rule becoming final will be processed by Customs regardless of the dates on which payments were made.

At this time, for similar reasons of administrative efficiency, Customs is also proposing to set a one year time limitation for the filing of a claim of any nature arising under the Customs laws which is not otherwise provided for in the regulations. This limitation is added to § 24.73 of the Customs Regulations (19 CFR 24.73).

Customs is also amending § 24.24(e)(2)(ii) for a technical error removing the citation to “(e)(3)(iii)” and replacing it with “(e)(2)(iii)”.

Before adopting the proposed amendments, consideration will be given to any written comments, including comments on the clarity of the amendments and how they may be made easier to understand, that are timely submitted to Customs. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552); § 1.4, Treasury Regulations (31 CFR 1.4); and § 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.

Insofar as the proposed amendments merely establish a filing time limit to existing regulations, pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), it is certified that the amendments, if adopted, will not have a significant economic impact on a substantial number of small entities. Accordingly, the proposed amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

The proposed amendments do not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The principal author of this document was Keith B. Rudich, Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service. However, personnel from other offices participated in its development.

It is proposed to amend part 24, Customs Regulations (19 CFR part 24) as set forth below:

MMS was asked to extend the deadline for submitting comments on the proposed regulations revising 30 CFR part 203, Relief or Reduction in Royalty Rates, published on November 16, 2000 (65 FR 69259, with a subsequent correction on November 22, 2000 (65 FR 70386)). The requests indicate a need to wait for the conclusion of two MMS-sponsored workshops the week of December 11, which are designed, in part, to discuss the content and rationale of the proposed rule.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by the law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

This proposed rule would eliminate the definition of “Affected State” at 30 CFR 256.14 as it applies only to the “Subpart B, Oil and Gas Leasing Program.” Because of the Presidential proclamation withdrawing areas of the Outer Continental Shelf (OCS) from leasing consideration, it is virtually impossible for many currently listed States to be affected under the Act. The definition in subpart B is therefore erroneous.

The definition of the term already is found at 30 CFR 256.5(g), which applies to the entire part and follows the definition in the Outer Continental Shelf (OCS) Lands Act, 43 U.S.C. 1331(f). The definition at § 256.5(g) reads as follows: “‘Affected State’ means, with respect to any program, plan, lease sale, or other activity, proposed, conducted, or approved pursuant to the provisions of the act, any State—

(1) The laws of which are declared, pursuant to section 4(a)(2) of the Act, to be the law of the United States for the portion of the Outer Continental Shelf on which such activity is, or proposed to be conducted;

(2) Which is, or is proposed to be, directly connected by transportation facilities to any artificial island or structure referred to in section 4(a)(1) of the Act;

(3) Which is receiving, or in accordance with the proposed activity will receive, oil for processing, refining, or transshipment which was extracted from the Outer Continental Shelf and transported directly to such State by means of vessels or by a combination of means including vessels;

(4) Which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment, or a State in which there will be significant changes in the social, governmental, or economic infrastructure, resulting from the exploration, development, and production of oil and gas anywhere on the Outer Continental Shelf; or

(5) In which the Secretary finds that because of such activity there is, or will be a significant risk of serious damage, due to factors such as prevailing winds and currents, to the marine or coastal environment in the event of any oilspill, blowout, or release of oil or gas from vessels, pipelines, or other transshipment facilities.”

At this time, listing all the States adjacent to the OCS as “affected” is contrary to the intent as well as the letter of the statute and may cause unnecessary administrative burden for those States that are not affected under the legal definition. In June 1998, President Clinton acted under the authority of section 12 of the OCS Lands Act to withdraw the Atlantic and Pacific coasts from leasing until the year 2012.

As a result of Presidential and congressional actions, there can be no leasing off the Atlantic coast until 2012. The other criteria in the statutory definition of affected State relate to post-lease activity. As there are no active leases off the Atlantic coast, it is virtually impossible for any Atlantic States to be affected by the 5-year program. Automatically treating such States as affected requires the Federal Government to involve them in the preparation of the multi-phased 5-year program that would not affect them. In addition, some States have their own administrative processes that come into play if they are deemed affected. These States should not be automatically involved if they do not meet the statutory definition. Because of the Presidential Proclamation, these States cannot be affected under the Act; therefore, the definition in Subpart B is erroneous. However, there is nothing that precludes any State's participation if they wish and to the extent they wish, as the 5-year process contains multiple periods for public comment. Elimination of the definition also reduces the burden on the Government to involve States that are not affected by the program.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State Governments. Elimination of the redundant and unnecessary definition of an Affected State could reduce costs on States that are not affected by the 5-year program and the cost to the Federal Government of involving unaffected States.

According to Executive Order 12630, the rule does not have significant Takings implications. A Takings Implication Assessment is not required. This rule has no effect on Takings, as it only applies to States that would no longer be automatically involved in the preparation of a program that has no affect on them, thereby eliminating the possible burden of doing so.

This document is not a significant rule and is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Ultimately, this rule is advantageous to the Federal Government in that it would not have to involve certain unaffected States in the complex, multi-step process of preparing a 5-year program and to those States that would not have to participate during program preparation, when the Federal Government makes three requests for comments and recommendations from affected States. Because of Presidential withdrawals and congressional moratoria, an average of 14 of the 23 coastal States could be deemed unaffected by a proposed 5-year program. If those 14 States were deemed unaffected, there could be a maximum savings of $170,100 ($2,100 + $168,000). At a minimum, a State must spend 1 hour deciding whether or not to respond. Therefore, there would be a minimum expenditure of $2,100 (14 States × 3 requests × 1 hour × $ 50 per hour). If a State decides, or in some cases is required to, participate by its own laws, that State could spend up to 80 hours preparing each response, for a maximum expenditure of $168,000 (14 States × 3 requests × 80 hours × $50 per hour).

(2) This will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. There are no other Federal agencies involved in this process as it relates to participation by coastal States.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or rights or obligations of their recipients. This rule has no effect on these programs or such rights.

(4) This rule does not raise novel legal or policy issues. As previously stated, the intent of this rule is to eliminate the redundant and unnecessary definition of Affected State at 30 CFR 256.14. The term already is defined at 30 CFR 256.5(g) and applies to the entire part.

According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) or the Order.

We have analyzed this rule according to the criteria of the NEPA and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required. This rule will have no impact regarding the criteria of the NEPA.

This regulation does not affect an existing OMB-approved information collection and an OMB Form 83-I is not required. The proposed rule simply removes a definition. OMB approved the information collection requirements in part 256 under OMB control number 1010-0006, with an expiration date of March 31, 2001.

The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601 et seq. ). This revised rule would eliminate the redundant and unnecessary definition of Affected State at 30 CFR 256.14. The only entities impacted by this rule change are certain coastal States that we would no longer automatically involve in a complex, multi-step process of preparing a 5-year program that would not affect them.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.

This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). This rule:

(1) Does not have an annual effect on the economy of $100 million or more. This rule would eliminate the need for the Federal Government to automatically involve some coastal States in a complex, multi-step process to prepare a program that would not affect them.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic areas. This rule would eliminate the need for some coastal States that would not be affected by a 5-year oil and gas program from participating in its preparation unless they chose to do so.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, ability of United States-based enterprises to compete with foreign-based enterprises. There are no United States- or foreign-based enterprises involved in this rule.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not create any kind of a mandate for State, local, or tribal governments or the private sector. In fact, it eliminates the need for the Federal Government to involve certain States in the preparation of a program that will not affect them. A statement containing the information required by the UMRA, 2 U.S.C. 1501 et seq. is not required.

For the reasons stated in the preamble, MMS proposes to amend 30 CFR part 256 as follows:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rules proposed for limited approval and limited disapproval with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On October 6, 2000, we determined that the submittals of ICAPCD Rules 101, 408, 409, 421, and 702 and MBUAPCD Rules 405 and 406 met the completeness criteria. On May 21, 1998, we determined that the submittal of SCAQMD Rule 1138 met the completeness criteria.

We approved versions of submitted ICAPCD Rule 101 into the ICAPCD portion of the SIP as Rule 101, Definitions, on May 27, 1982 (47 FR 23159) and as Rule 701, Definitions, on January 27, 1981 (46 FR 8472).

We approved a version of submitted ICAPCD Rule 408 into the ICAPCD portion of the SIP as Rule 408, Frost Protection and Orchard Heaters, on January 27, 1981 (46 FR 8472).

We approved a version of submitted ICAPCD Rule 409 into the ICAPCD portion of the SIP as Rule 409, Incinerators, on November 18, 1983 (48 FR 52452).

We approved a version of submitted ICAPCD Rule 420 into the ICAPCD portion of the SIP as Rule 420, Livestock Feed Yards, on February 3, 1989 (54 FR 5448). The current submittal supersedes a submittal on October 25, 1991 on which we have not acted.

We approved a version of submitted ICAPCD Rule 421 into the ICAPCD portion of the SIP as Rule 421, Open Burning—Non-Agricultural, Rule 422, Open Burning of Wood Wastes, and Rule 423, Exceptions, on February 3, 1989 (54 FR 5448).

We approved versions of submitted ICAPCD Rule 701 into the ICAPCD portion of the SIP as Rule 202, Exceptions, on August 22, 1977 (42 FR 42224) and Rule 702, Prohibitions, and Rule 706, Penalty Clause, on January 27, 1981 (46 FR 8472).

We approved a version of submitted ICAPCD Rule 702 into the ICAPCD portion of the SIP as Rule 705, Range Improvement Burning, on January 27, 1981 (46 FR 8472).

We approved versions of submitted MBUAPCD Rule 403 into the MBUAPCD portion of the SIP as Rule 403, Particulate Matter, on May 18, 1981 (46 FR 27116) and as Rule 405, Exceptions, on July 13, 1987 (52 FR 26148).

We approved MBUAPCD Rule 406, Additional Exception, into the MBUAPCD portion of the SIP on July 13, 1987 (52 FR 26148).

We approved the following versions of submitted SJVUAPCD Rule 4201 into the portions of the California SIP applicable to each of the eight counties that were unified and now comprise the SJVUAPCD:

• Fresno County Rule 404, Particulate Matter Concentration, approved on August 22, 1977 (42 FR 42219).

• Kern County Rule 404, Particulate Matter Concentration—Valley Basin, approved on August 22, 1977 (42 FR 42219).

• Kings County Rule 404, Particulate Matter, approved on August 4, 1978 (43 FR 34468).

• Madera County Rule 403, Particulate Matter Emissions from the Incineration of Combustible Refuse, approved on April 16, 1991 (56 FR 15286).

• Merced County Rule 404, Particulate Matter Concentration, June 14, 1978 (43 FR 25689).

• San Joaquin County Rule 404, Particulate Matter Concentration, approved on August 22, 1977 (42 FR 42219).

• Stanislaus County Rule 404, Particulate Matter Concentration, approved on August 22, 1977 (42 FR 42219).

• Tulare County Rule 404, Particulate Matter, approved on August 22, 1977 (42 FR 42219).

Submitted SJVUAPCD Rule 4901 is a new rule with no previous versions or submittals.

Submitted SCAQMD Rule 1138 is a new rule with no previous versions or submittals.

Submitted ICAPCD Rule 101 has the following changes:

• Many definitions were added or revised to correspond to requirements of the amended Clean Air Act of 1990 (CAA).

• The definitions for Major Source and Major Modification were deleted. These definitions are not relevant in Rule 207, New Source Review, because the threshold requiring new source review is more stringent than that defined for a major source or major modification.

• The definitions from SIP Rule 701 were transferred to Rule 101.

Submitted ICAPCD Rule 408 adds a prohibition to burn oil in open containers and adds requirements that orchard heaters be clean, in good repair, and be free of solids in stacks.

Submitted ICAPCD Rule 409 has the following changes:

• The specific temperature and contact time for burning was added.

• The exemption was clarified to exclude the burning of certain materials that produce smoke or toxic fumes.

Submitted Rule ICAPCD Rule 420 has the following changes:

• The submitted rule applies to all livestock feed yards subject to ICAPCD regulations, while the SIP-approved rule applies strictly to livestock feed yards located within 1.5 miles from any “urban limit,” as defined by the County General Plan.

• Submitted Rule 420 specifies under a new “Test Methods” section that moisture content shall be determined with an electrical conductivity moisture meter.

Submitted ICAPCD Rule 421 consists of SIP Rules 421, 422, and 423 combined. In addition, the following changes were made:

• The exception to the general prohibition to use an orchard heater for freeze protection was deleted.

• The exception to the general prohibition to use equipment in agricultural operations were deleted.

• The exception to the general prohibition to burn for agricultural operations for the grazing of animals or raising of cattle was deleted.

• The authority of a public officer to set or permit a fire for the remediation of an oil spill on water (presumed on a No-Burn Day) pursuant to Section 8670.7 of the California Government Code was added.

Submitted ICAPCD Rule 701 consists primarily of SIP Rule 702 renumbered to Rule 701, plus the exceptions contained in SIP Rule 202. An authority citation from SIP Rule 706 is revised and also moved into Rule 701, while the penalty clause was omitted. SIP Rule 701 contained only definitions, which were transferred to Rule 101 and will be superseded by submitted Rule 101 in another TSD. The significant changes in submitted Rule 701 are as follows:

• The APCO was granted the authority to restrict burning on Burn Days, if meteorological conditions would cause an undue amount of emissions to be transported to populated or sensitive receptor areas or cause or contribute to a violation of an ambient air quality standard.

• The requirement was added that a District inspector must be present for agricultural burns near residential areas, rural schools, or heavily travelled roads.

Submitted Rule 702 consists primarily of SIP Rule 705 renumbered. There are no significant changes between Rules 702 and 705.

Submitted MBUAPCD Rule 403 has all of the exceptions in Rule 405 transferred to it as exemptions to Rule 403. An exemption for internal combustion engines was also added.

Submitted MBUAPCD Rules 405 and 406 are rescinded.

Submitted SJVUAPCD Rule 4201 changes are as follows:

• The rules of eight old counties that unified into SJVUAPCD are combined into a single rule, which is equally as stringent.

Submitted SJVUAPCD Rule 4901 is a new rule that consists of the following:

• All new wood heaters must be EPA-certified Phase II or pellet-fueled.

• All used wood heaters must be EPA-certified or Oregon-certified or pellet-fueled.

• Retailers must provide public awareness information with each wood burner sale and cannot advertise wood as “seasoned” unless the moisture content is 20 percent or less by weight.

• The rule establishes a two-stage voluntary curtailment program during November through February for areas located less than 3,000 feet above mean sea level, except where wood burning is the sole source of heat or natural gas is not available. The APCO will request a Level I voluntary curtailment when a Pollutant Standards Index (PSI) of 100 or greater is predicted or request a Level II voluntary curtailment when a PSI of 150 or greater is predicted.

Submitted SCAQMD Rule 1138 is a new rule that consists of the following:

• The operator of a chain-driven charbroiler must install a catalytic oxidizer or equivalent control device that will result in an emissions decrease of about 83% for both PM-10 and VOC.

• An operator of a charbroiler with permitted control equipment operating before November 14, 1997 may continue to operate for the life of the control equipment. At this time but not later than November 14, 2007, the operator must replace the existing control equipment with a catalytic oxidizer or equivalent control device.

• An operator that cooks less than 875 pounds of meat per week or emits less than one pound per day of any criteria pollutant may apply for an exemption, but must keep records to support the exemption.

The TSDs have more information about these rules.

We evaluated these rules for enforceability and consistency with the CAA as amended in 1990, with 40 CFR part 51, and with EPA's PM-10 policy. Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 nonattainment areas to implement reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Section 189(b) requires that serious PM-10 nonattainment areas, in addition to meeting the RACM/RACT requirements, implement best available control measures (BACM), including best available control technology (BACT). ICAPCD is a moderate PM-10 nonattainment area. MBUAPCD is a PM-10 attainment area and need not meet BACM/BACT or RACM/RACT control levels. SJVUAPCD and SCAQMD are serious PM-10 nonattainment areas. SCAQMD is an extreme ozone nonattainment area and is required by section 182(a)(2)(A) of the CAA to meet RACT requirements for VOC.

EPA's preliminary guidance for moderate PM-10 nonattainment areas provides that RACM/RACT is required to be implemented for all source categories unless the State demonstrates that a particular source category does not contribute significantly to PM-10 levels in excess of the NAAQS ( i.e. , de minimis sources). See General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 , 57 FR 13498, 13540 (April 16, 1992) and Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 , 59 FR 41998 (August 16, 1994). The activities subject to ICAPCD Rule 420 contribute a significant amount of the total PM-10 emissions, and the activities subject to submitted Rules 701 and 702 contribute a small but not insignificant amount of the total PM-10 emissions in the Imperial Valley according to the September 23, 1993 State Implementation Plan for PM-10 in the Imperial Valley (ICAPCD PM-10 Plan). Moreover, the ICAPCD PM-10 Plan relies on SIP Rules 702, 704, and 705, which are versions of submitted Rules 701 and 702. Submitted Rules 420, 701, and 702 must meet RACM/RACT control levels. However, we are not determining at this time whether Rule 420 does so.

The activities subject to ICAPCD Rules 408, 409 and 421 do not contribute a significant amount of the total PM-10 emissions in ICAPCD according to the ICAPCD PM-10 Plan. Therefore, ICAPCD Rules 408, 409, and 421 are not being evaluated to meet RACM/RACT control levels, but only to ensure that they do not relax the SIP in violation of sections 110(l) and 193 of the CAA and that they meet enforceability and other general SIP requirements of section 110.

The activities subject to submitted SJVUAPCD Rule 4201 contribute a small but not insignificant amount of the total PM-10 emissions in the SJVUAPCD according to the May 15, 1997 SJVUAPCD PM-10 Attainment Demonstration Plan (SJVUAPCD PM-10 Plan). Moreover, the SJVUAPCD PM-10 Plan relies on Rule 4201. Therefore, submitted Rule 4201 must meet BACM/BACT control levels.

The activities subject to submitted SJVUAPCD Rule 4901 contribute a significant amount of the total PM-10 emissions in the SJVUAPCD according to the SJVUAPCD PM-10 Plan. Moreover, the SJVUAPCD PM-10 Plan relies on Rule 4901. Therefore, submitted Rule 4901 must meet BACM requirements.

The activities subject to submitted SCAQMD Rule 1138 must meet BACM/BACT requirements for PM-10 and RACT requirements for VOC.

The TSDs have more information on how we evaluated the rules.

Guidance and policy documents that we used to define specific enforceability, RACM/RACT, BACM/BACT, and SIP relaxation requirements include the following:

• PM-10 Guideline Document , (EPA-452/R093-008).

• State Implementation Plan for PM-10 in the Imperial Valley (September 23, 1993).

• General Preamble Appendix C3—Prescribed Burning Control Measures , 57 FR 18072 (April 28, 1992).

• Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 , 59 FR 41998 (August 16, 1994).

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations: Clarification to Appendix D of November 24, 1987 Federal Register (Blue Book), notice of availability published in the Federal Register (May 25, 1988).

• Guidance Document for Residential Wood Combustion Emission Control Measures (EPA-450/2-89-015).

• Technical Information Document for Residential wood Combustion Best Available control Measures , EPA-450/2-92-002 (September 1992).

• Model Volatile Organic Compound Rules for Reasonably Available Control Technology (June 1992).

These rules are largely consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSDs.

ICAPCD Rule 420 contains the following deficiencies:

• The rule lacks a test method procedure by which to determine compliance with the moisture content standard ( e.g. minimum number of samples to be collected, specifics on collecting representative samples, whether moisture content results of each sample are to be averaged for a final result).

• The rule lacks a definition of “rainy period.”

• The rule contains inappropriate Executive Officer discretion with respect to allowing exceptions to compliance with the rule's moisture content standard. Specific criteria for granting an exception must be included in the rule. ICAPCD Rule 701 contains the following deficiency:

• The rule has limited enforceability, because of the open-ended discretion of the Director to approve an exemption to burn on a No-Burn Day in case of imminent and substantial economic loss if the burning were not allowed. The conditions to allow such burning must be limited such that it is unlikely that the NAAQS would be violated or that there would be smoke impacts on sensitive areas. MBUAPCD Rule 403 contains the following deficiencies:

• The rule enforceability is limited, because it does not contain periodic monitoring requirements.

• The rule enforceability is limited, because it does not state the test method for PM.

• The rule enforceability is limited, because it does not require recordkeeping for at least two years. SJVUAPCD Rule 4201 contains the following deficiencies:

• The rule does not appear to meet the requirements of BACM/BACT. Other serious PM-10 nonattainment areas have lower particulate matter emission limits.

• The rule does not have periodic monitoring requirements.

• The rule does not require recordkeeping for at least two years.

SJVUAPCD Rule 4901 contains the following deficiency:

• The rule does not appear to meet the requirements of BACM, which should include restrictions on the sale and installation of woodburning fireplaces, mandatory curtailment during periods of poor air quality, and possibly other control measures.

The TSD for ICAPCD Rule 421 describes an additional rule revision that does not affect our current action but is recommended for the next time the local agency modifies the rule.

As authorized in sections 110(k)(3) and 301(a) of the Act, we are proposing a limited approval of MBUAPCD Rule 403 to improve the SIP. If finalized, this action would incorporate the submitted rule into the SIP, including those provisions identified as deficient. We are simultaneously proposing a limited disapproval of this rule under section 110(k)(3). If this disapproval is finalized, no sanctions would be imposed under section 179 of the CAA because the area is PM-10 attainment and the rule is not required to maintain attainment. Note that the submitted rule has been adopted by the District, and our final limited disapproval would not prevent the local agency from enforcing it.

As authorized in sections 110(k)(3) and 301(a) of the Act, we are proposing a limited approval of ICAPCD Rules 420 and 701, SJVUAPCD Rule 4201, and SJVUAPCD Rule 4901 to improve the SIP. If finalized, this action would incorporate these submitted rules into the SIP, including those provisions identified as deficient. We are simultaneously proposing a limited disapproval of these rules under section 110(k)(3). If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months. These sanctions would be imposed as described in 59 FR 39832 (August 4, 1994) because the areas are PM-10 nonattainment and the PM-10 emissions are not insignificant. A final disapproval would also trigger the federal implementation plan (FIP) requirement under section 110(c). Note that the submitted rules have been adopted by the Districts, and our final limited disapproval would not prevent the local agencies from enforcing them.

As authorized in section 110(k)(3) of the Act, EPA is also proposing a full approval of ICAPCD Rules 101, 408, 409, 421, and 702, a full approval of the recision of MBUAPCD Rules 405 and 406, and a full approval of SCAQMD Rule 1138 to improve the SIP.

We will accept comments from the public on the proposed limited approval and limited disapproval and on the proposed full approvals for the next 30 days.

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions. Table 3 lists some of the national milestones leading to the submittal of local agency PM-10 rules.

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

Executive Order 13045, entitled 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, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly 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 OMB 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 proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

Executive Order 13132, entitled 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 proposed 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 acts on 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 proposed 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 proposed rule will not have a significant impact on a substantial number of small entities because SIP actions under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP action does not create any new requirements, 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 annual costs to State, local, or tribal governments in the aggregate; or to 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 proposed action does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This proposed Federal action acts on 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.

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.

EPA believes that VCS are inapplicable to today's proposed action because it does not require the public to perform activities conducive to the use of VCS.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

You may view an electronic version of this proposed rule at BLM's Internet home page: www.blm.gov. You may also comment via the Internet to: WOComment@blm.gov. Please also include “Attention: AC-06” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at (202) 452-5030.

Written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal which the commenter is addressing. BLM may not necessarily consider or include in the Administrative Record for the final rule comments which BLM receives after the close of the comment period (See DATES ) or comments delivered to an address other than those listed above (See ADDRESSES ). Comments, including names, street addresses, and other contact information of respondents, will be available for public review at BLM's offices at 1620 L Street, N.W., Washington, D.C. during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish to request that BLM consider withholding your name, street address, and other contact information (such as: Internet address, FAX or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. BLM will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. BLM will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.

Federal agencies are generally authorized to do this by the Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701.

BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. “Public lands” in FLPMA means all lands or interests in land owned by the United States and administered by BLM, excluding outer continental shelf lands and Native American lands. 43 U.S.C. 1702(e). BLM interprets this definition to mean that a mineral lease or mineral materials disposal administered by BLM, or a mining claim (for which BLM determines validity), even in land where the surface is administered by another agency, is an “interest in land” for the purposes of FLPMA.

[Before BLM disposes of mineral materials or issues a mineral lease on these lands, if the surface managing agency also exercises considerable authority over the mineral estate, that estate may not be sufficiently under the administrative control of BLM to qualify as “public lands” for purposes such as exchanges. However, once BLM issues a mineral lease or proceeds with a mineral materials disposal, we are administering an interest in the lands, and that interest now falls under the FLPMA definition of “public lands.” Since the Secretary of the Interior has primary jurisdiction over determining the validity of mining claims, and BLM administers the mineral estate covered by those claims, mining claims also qualify as public lands under FLPMA. Of course, BLM also has authority under the IOAA to collect fees for processing documents related to its administration of the mineral estate in these instances.]

The IOAA and section 304 of FLPMA authorize BLM to charge applicants for the cost of processing documents through rulemaking, which BLM is proposing to do through this rule. The IOAA also states that these charges should pay for the agency services as much as possible.

These policies are explained in the Office of Management and Budget (OMB) Circular A-25, “User Charges,” and the Department of the Interior Departmental Manual, Part 346, “Cost Recovery.”

The general federal policy is that a charge “will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public.” (OMB Circular A-25.) The Department of the Interior Manual mirrors this policy (346 DM 1.2 A.) Certain activities may be exempted from these fees under certain conditions set out at 346 DM 1.2 C.

It means reimbursement to BLM of its costs of processing a document by charging a fee to the applicant/beneficiary.

This is an office within the Department of the Interior which studies Departmental economy and efficiency, and makes recommendations for improvement.

OIG reports No. 89-25 (1988) and 95-I-379 (1995).

The report recommended that BLM:

• List all the minerals-related document types for which it had authority to charge BLM processing costs to the applicant;

• Determine the BLM processing cost for each type of document and count how many were processed;

• Establish exemption standards and apply them to each type of document on the list;

• Prepare and maintain exemption documentation for exempted document types; and

• Establish and collect processing cost fees for all non-exempt types of documents.

BLM first conducted an inventory of about 130 types of documents in all onshore energy and mineral program areas: fluid minerals (including geothermal) resources leasing and operations; solid leasable minerals (coal and non-energy minerals) leasing and operations; mining law administration (locatable minerals); and mineral materials (salable minerals such as sand and gravel).

From this inventory BLM listed the types of documents for which it appeared we had authority to collect processing fees, and those that appeared to be exempt. BLM developed exemption standards in 1989 comprised of the first four exemption categories in the Departmental Manual and two additional categories: documents primarily benefitting the public and documents related to appeals.

We started with a pilot analysis in the Montana State Office, then surveyed all BLM State Offices in 1990. To ensure that the State Offices used the same data-gathering approach, the BLM Washington Office gave all State Offices a copy of Part 346 of the Departmental Manual, three types of standard forms to record the data, and detailed instructions previously tested for clarity in the Montana pilot analysis.

Yes. BLM's preliminary review of the data showed large cost differences among offices for processing certain types of documents as well as big differences in the numbers of documents filed and processed. For example, office processing costs for a mineral materials noncompetitive sale application ranged from $234 to $4,773. [The 1995 OIG report, discussed below, cites the low end of the range for this document as $81.64. 1995 OIG Audit Report, p. 3. BLM has been unable to determine the source of this figure.] As discussed below, BLM reconsidered the State Offices' estimated costs for noncompetitive sales applications and determined that the differences in estimates were attributable to unique site- or sale-specific factors.

Similarly, the number of mining law affidavits of assessment filed in State Offices for Fiscal Years 1988-1990 varied from about 2,761 to 251,564. For certain mineral-related document types, some offices had no activity during the three years sampled.

BLM decided to use a “weighted” average rather than a simple average to determine a BLM-wide processing cost for each type of document. This method gave greater weight to the processing cost data from State Offices with a heavy workload, and thus more expertise, in processing a particular type of document.

Between 1995 and 1999, we re-analyzed much of the data, conducted spot checks to verify its continued validity, and adjusted it to current prices.

The report (No. 95-I-379, January 1995) found that, of the five recommendations in the 1988 OIG report, BLM had implemented the first, third, and fourth recommendations, had partially implemented the second recommendation to determine the cost and number of each document filing processed, and had not yet implemented the fifth recommendation to establish and collect BLM processing cost fees for non-exempt types of documents. The OIG sent BLM a draft of this report to which we responded in August 1994. We later met with the OIG and discussed issues raised by the report, including the issue of guidance and standards in data gathering. We also provided supplemental information to the OIG in December 1994 to resolve the issue.

The OIG noted the wide variations in estimates of the time and cost needed to process types of documents among various BLM State Offices, and made two recommendations to BLM from the draft report. First, BLM should develop document processing standards, request cost information from State Offices based on these standards and analyze and resolve significant differences in the collected data, particularly for types of documents which have major impacts on the total amount of money that BLM can recover. Secondly, BLM should expedite the establishment and collection of fees for processing types of documents which have major impacts on the total amount of money that BLM can recover, and continue efforts to establish and collect fees for other types of documents.

The report went on to say that in the supplemental information provided in December 1994, BLM told the OIG that it had developed guidance/standards “which were used by all state offices to achieve uniformity in data gathering and reporting.” It also said that BLM had stated we would establish a multi-program team to continue examining fees to establish a consistent cost recovery program. Based on our responses to the draft report, the final 1995 OIG report concluded that “we consider both recommendations resolved but not implemented.”

After the 1995 report was issued, BLM created a team to update its processing cost data, with priority given to establishing and collecting fees for types of documents with a significant impact on the total amount of money that we can recover. To update the existing data and verify its accuracy, the team gathered new estimates of the number of annual filings, updated processing cost estimates, and assigned BLM minerals experts to review the data in their specialties.

BLM's fluid minerals program re-analyzed this data, comparing the data and identifying the appropriate job position, salary level, and time needed for each step indicated in BLM oil, gas, and geothermal Handbooks to process each type of document. The 1990 data was also based on the steps in the Handbooks. Based on this analysis, we calculated a direct cost (see discussion of direct/indirect costs below) for each step of the process, which was then adjusted to 1995 salary rates without a locality factor. Indirect costs were later added. We used these cost figures in this proposed rule as the actual cost estimates for oil and gas and geothermal document types, from which the fees were determined. This method was used for oil and gas and geothermal because the assigned program expert believed it would yield accurate cost estimates.

We spot checked the data by resubmitting it to selected State Offices which often process these particular categories of documents. We also sent these offices a summary of the cost data that office had previously submitted for these types of documents, along with the BLM-wide weighted average cost for each of them. We requested that the State Offices review the cost data and report whether that data, adjusted to current prices, remained reasonable. We also requested that the State Office re-estimate costs for that state if it found the re-examined adjusted cost data to be unreasonable for that time period. This re-examination verified the current validity of BLM's data and ensured that figures which varied significantly among offices had not been submitted in error. We used this method for these programs because our program experts believed it would yield accurate data and be cost-effective.

Also, in mineral materials, the team reconsidered the State Offices' estimated costs for non-competitive sale applications which the 1995 report had highlighted. The team determined that the differences among State Offices were largely caused by unique site- or sale-specific factors, such as the amount and nature of surface disturbance (for example, whether the sales are from existing or new pits, and how much material is to be removed); the impact on other surface resources (which may vary even within the same area); and National Environmental Policy Act (NEPA) analysis.

To bring the figures in line with 1999 prices, BLM adjusted them to the Implicit Price Deflator for Gross Domestic Product for 1998 (the most recent year available) published by the U.S. Department of Commerce, which economists generally consider to be the most reliable general price index.

As explained above, BLM resolved the first part of the OIG's first recommendation about what standards we used by sending the OIG information in response to the draft report about our use of concrete standards in data collection. BLM updated the proposed fees and updated, analyzed, and verified the data, which responded to the second part of the OIG's first recommendation. This rule proposes to implement the first part of the second 1995 OIG recommendation: BLM would collect fees for types of documents that have a significant impact on the amount of money BLM can recover. This proposed rule covers only some of the documents for which BLM has the authority to recover costs. BLM intends to continue to work on establishing and collecting fees for other documents as well, including those addressed in the Solicitor's Dec. 5, 1996 M Opinion on this subject (M-36987). This satisfies the second part of the OIG's second recommendation.

This rule would establish fixed fees and fees based on BLM's case-by-case processing costs. A fixed fee remains the same for each document of a particular type. How BLM set these fixed fees is explained below. A fee based on BLM's case-by-case processing costs would be calculated by tracking the ongoing costs of processing an individual document.

Fixed fee amounts set by rulemaking would not be appealable to the Interior Board of Land Appeals (IBLA) because rulemaking actions are binding on the Department. Case-by-case fees could be appealed in accordance with the Department's general appeals rule at 43 CFR Part 4. BLM would not continue processing a document while an appeal is pending unless the applicant paid the fee under protest. In that case, if the final decision were that the fee was too high, BLM would refund the overpayment. See 43 U.S.C. 1734(c).

Section 304(b) of the Federal Land Policy and Management Act (FLPMA) lists six factors (the FLPMA “reasonableness” factors) that BLM must consider in deciding what is a reasonable processing fee. They are:

(1) BLM's actual costs to process a document. This does not include management overhead, which means costs of BLM State Directors and Washington office staff, except when a member of this group works on a specific authorization like a lease. Actual costs include (but are not limited to) such costs as money spent on special studies, environmental impact statements and other analysis, and monitoring exploration activities, development, construction, production, operation, maintenance, or termination of an authorized facility.

(2) The monetary value, or objective worth, of the right or privilege that the applicant seeks.

(3) The efficiency with which BLM processes a document, meaning with a minimum of waste by carefully managing agency expenses and time.

(4) Whether any of BLM's processing costs, for things such as studies or data collection, benefit the general public or the federal government, rather than just the applicant. This is referred to in the statute as “benefit of the general public interest.”

(5) Whether the project provides any significantly valuable tangible improvement, such as a road, or other direct service to the public. This is referred to in the statute as “public service.” However, a negative factor, such as an adverse impact on wildlife or surface drainage, may prevent an improvement from being a public service. Data collection that we need to monitor an activity is not a public service.

(6) Any other relevant factors.

We considered each of the FLPMA factors for each type of document for which we are proposing a fixed fee in this rule. We first estimated the actual cost for a type of document and then considered each of the other FLPMA factors to see if any of them might cause a fee to be set at less than actual cost. If so, we then considered whether any of the remaining factors acted as an enhancing factor that would mitigate against setting the fee at less than actual cost. We then decided the amount of the fee, which cannot be more than our processing cost. For most minerals actions in this proposal this method resulted in fees set at our actual processing cost.

This weighing of the factors would also be applied to fees that are determined on a case-by-case basis. For those fees, BLM would give the applicant an estimate of the proposed fee after estimating the actual cost of processing the individual document and considering the other FLPMA factors. The applicant could then comment on the proposed fee. We would consider the applicant's comments and any work to be performed by the applicant, and give the applicant a final fee estimate. We could re-estimate reasonable costs whenever necessary. If the fee is set at less than our actual costs because of one of the FLPMA factors, processing could not proceed until funding for the shortfall became available through the BLM budget, contributions by the applicant, or other means.

In considering the FLPMA factors we found several trends. First, the monetary value of the right or privilege was much greater than the processing cost. Also, our document processing procedures, which are based on standard steps in internal BLM Handbooks, are reasonably efficient.

We also found that none of the studies or data collection performed as part of BLM's document processing significantly benefits the general public. [The courts have held that processing which an agency is required to perform in connection with a specific request (for example, before approving a permit) provides a special benefit to an applicant, even if it also provides some benefit to the public. See, e.g., Mississippi Power & Light Co. v. United States Nuclear Regulatory Comm'n , 601 F.2d 223 (5th Cir. 1979), cert. denied 444 U.S. 1102 (1980).] We found that any small benefit to the public provided by the processing of fixed fee documents in this rulemaking is speculative and outweighed by the monetary value to the applicant of the right or privilege.

Furthermore, the applicant's project usually provides little or no service to the public. If a project provides a small public service, it will usually be outweighed by the monetary value to the applicant of the right or privilege. Finally, there are usually no other relevant factors.

Yes. We decided not to do this because it would require enormous effort and expense. Also, when we can reliably estimate costs for routine services, we believe applicants benefit from knowing fees in advance. We will therefore determine costs on a case-by-case basis only for types of documents where the average processing cost may not be a reasonably accurate estimate because costs may differ significantly in each case.

Actual costs are the sum of both direct and indirect costs. Direct costs include such things as labor, material and equipment; BLM's measurement of direct costs is explained below. Indirect costs include items like rent and overhead, excluding State Director and Washington Office management overhead.

For an example of how BLM would determine the sum of direct and indirect costs, suppose the measured direct cost of processing a document is $200. To estimate the indirect cost for processing that document, the BLM office would use a ratio already determined in its accounting system—perhaps, ten to one, meaning for every $10 of direct costs there would be $1 of indirect costs. BLM would then estimate the indirect cost using the ratio and direct cost figures. In this example, since the direct cost was $200 and the ratio is ten to one, the indirect cost is $20. BLM then would add the direct and indirect cost figures to arrive at the actual cost figure of $220 to process the document. This method is generally accepted in the private and public sectors.

When we set fees at actual cost in the proposed rule, we rounded the cost figures down to the nearest zero or five for amounts over $10. For example, a cost figure of $157 was rounded down to $155 and a figure of $153 was rounded down to $150. For amounts under $10, we rounded the cost figures down to the nearest dollar. We did not round any cost figures up, to avoid charging more than actual processing costs.

They would include all costs we incur while processing your document, such as the costs of studies BLM conducts to comply with legal requirements like environmental laws, the mineral leasing laws, or the Mining Law of 1872. For a mineral validity examination/report, the mineral examiner would consider the cost to the claimant of the examination and report along with other costs of doing business in evaluating whether the claimant has made a valuable discovery of minerals on the claim. This is because the cost of a mineral exam/report is a business cost similar to the cost of complying with environmental requirements, which is significant in deciding whether there has been a discovery. See United States v. Pittsburgh Pacific Co., 30 IBLA 388, 84 I.D. 282, 290 (1977); United States v. Kosanke Sand Corp., 12 IBLA 282, 298-99, 80 I.D. 538, 546-47 (1973) (on reconsideration).

Also, although current proposed section 3800.5 refers to applicants for a plan of operations or a mineral patent “under this part,” i.e., 43 CFR Part 3800, BLM may provide in the final rule that BLM will also recover costs of validity examinations and reports performed in connection with plan of operations applications that are submitted under other parts of the CFR as well, such as 36 CFR Part 9 (which implements the Mining in the Parks Act).

If BLM accepted your documents before the final rules were in effect, and fees for such documents would have been subject to fixed fees under the new rules, you would not be required to pay such fees. If we accepted your document prior to a final rule, and fees for such a document would be calculated on a case-by-case basis under the new rule, you would be charged fees on that basis for any processing work that must still be done after the final regulations went into effect. This is because filing an application will not exempt you from subsequent regulations. See Hannifin v. Morton, 444 F.2d 200, 202-203 (10th Cir. 1971). You would not be charged for the processing that took place prior to the regulations going into effect, however, unless a prior regulation or agreement required it.

Yes. We decided not to do this because it would require enormous effort and expense. Also, when we can reliably estimate costs for routine services, we believe applicants benefit from knowing fees in advance. We will therefore determine costs on a case-by-case basis only for types of documents where the average processing cost may not be a reasonably accurate estimate because costs may differ significantly in each case. To illustrate the case-by-case variation of BLM's processing cost, costs for processing a “noncompetitive mineral material sales” range from $282 to $5,747 with an average cost of $2,350.

We used an agency-wide average cost figure for each type of document. This is a reasonable approximation of our actual processing cost for that document type, as well as an efficient method of measuring the cost.

We used the data collected from State Offices in 1990, as analyzed and updated in 1995-1996 and in 1999. In the areas of oil and gas and geothermal, we used our re-analyzed direct cost estimate, to which indirect costs were added, as the average cost figure. In other areas, we used the weighted average cost, which included indirect costs, as the average cost figure.

For noncompetitive lease applications, fixed fees would include receiving, validating, and entering data; examining land availability; sorting parcels (i.e., developing parcel configuration/acreage); preparing stipulations; preparing sale notices; noting title records; preparing and conducting sale auctions; preparing lease decisions, and entering and transmitting data updates.

For competitive lease applications, fixed fees would include preparing sale notices; noting title records; preparing and conducting sale auctions; preparing lease decisions; and entering and transmitting data updates. This fee does not at this point include steps leading to sorting parcels, i.e. developing parcel configuration/acreage, and preparing stipulations.

For assignments and transfers, fixed fees would include receiving, validating, and entering data; examining assignment and transfer forms; reviewing leases and bonds; and approving, entering, and transmitting updates. For assignments and transfers due to name changes, corporate mergers, or transfer to an heir or devisee, fixed fees would include receiving, validating, and entering data; examining requests; determining successors-in-interest or other special requirements; reviewing leases and bonds; preparing decisions; and entering and transmitting updates.

For transfers of overriding royalties or payments out of production, fixed fees would include receiving, validating, and entering data.

For lease consolidations, fixed fees would include receiving, validating, and entering data; examining requests, lease term conditions, and productions; preparing new leases and decisions; and entering and transmitting updates.

For lease renewals, fixed fees would include receiving, validating, and entering data; examining requests and lease forms for compliance; preparing decisions; and entering and transmitting updates.

For Class 1 lease reinstatements, fixed fees would include receiving, validating, and entering data; examining eligibility; preparing decisions; and entering and transmitting updates.

For noncompetitive lease applications, fixed fees would include receiving, validating, and entering data; examining land availability; sorting parcels ( i.e., developing parcel configuration/acreage); preparing stipulations; preparing sale notices; noting title records; preparing and conducting sale auctions; preparing lease decisions; and entering and transmitting data updates.

For competitive lease applications, fixed fees would include preparing sale notices; noting title records; preparing and conducting sale auctions; preparing lease decisions; and entering and transmitting data updates. This fee does not at this point include steps leading to sorting parcels, i.e. developing parcel configuration/acreage, and preparing stipulations.

For assignments and transfers, fixed fees would include receiving, validating, and entering data; examining assignment and transfer forms; reviewing leases and bonds; and approving, entering, and transmitting updates. For assignments and transfers due to name changes, corporate mergers, or transfer to an heir or devisee, fixed fees would include receiving, validating, and entering data; examining requests; determining successors-in-interest or other special requirements; reviewing leases and bonds; preparing decisions; and entering and transmitting updates.

For lease reinstatements, fixed fees would include receiving, validating, and entering data; examining eligibility; preparing decisions; and entering and transmitting updates.

For prospecting permit application amendments, fixed fees would include receiving, validating, and entering data; examining requests and rental payments; and entering and transmitting updates.

For prospecting permit extensions, fixed fees would include receiving, validating, and entering data; examining requests and diligence; and approving, entering, and transmitting updates.

For lease renewals, fixed fees would include receiving, validating, and entering data; examining requests; determining changes in bonds and stipulations; preparing decisions; and entering and transmitting updates.

For notices of location, fixed fees would include receiving data and validating land status; collecting statutory fees; and entering data.

For amendments to a location, fixed fees would include receiving, validating, and entering data.

For a mineral patent adjudication, fixed fees would include receiving and entering data; examining mineral surveys, statements required by statute, initial descriptions of geology and mineral evidence, and status of adverse claims; ensuring sufficiency of title evidence (title opinion or abstract with certified copies of location certificates and all amendments); publishing legal notices; receiving and examining final proofs and statements for sufficiency; accepting purchase monies; forwarding the application to the Secretary for review; and issuing decisions. Fixed fees would not include the cost of a mineral examination and report.

For assignments and transfers, fixed fees would include receiving, validating, and entering data.

For affidavits of assessment work, fixed fees would include receiving, validating, and entering data.

For notices of intent to hold, fixed fees would include receiving, validating, and entering data.

For deferments of assessment work, fixed fees would include receiving and entering data; examining requests; determining eligibility; approving or rejecting requests; entering and transmitting updates; and issuing decisions.

For adverse claims, fixed fees would include receiving and entering data; examining evidence; accepting or denying claims; and issuing decisions.

For protests, fixed fees would include receiving and entering data; examining evidence; and issuing decisions either to dismiss or accept a protest. Fixed fees would not include costs associated with adjudications to correct errors or omissions uncovered by a protest.

We would adjust the fees periodically to the Implicit Price Deflator, discussed above, to bring them in line with current costs. We chose this method because the alternative is to collect data periodically to adjust fees to inflation, which is inefficient, costly, and impractical. When we do adjust fees, we will publish them in the Federal Register .

Yes. The fees in this rule do not include certain internal steps for which we believed costs could not be recovered when we initially collected data. For example, the costs for processing an oil and gas or geothermal competitive lease sale parcel do not include the steps required to prepare an individual sale parcel prior to preparing the sale notice, because we assumed those costs were not recoverable. However, the Solicitor's Dec. 5, 1996 Opinion on cost recovery concluded that we can recover costs for those steps, so in future rules we will propose fees that attempt to capture these costs and other costs not captured here so that fees will accurately reflect our reasonable costs. We may also amend fees when we receive new data or have another reason to believe that fees do not accurately reflect reasonable costs.

No. We decided not to try to calculate exact figures either by document type or on a case-by-case basis because that would involve extensive time and resources, and because we can reasonably judge the magnitude of these values relative to our costs. We have considered monetary value in terms of fairness rather than precise figures before, in the preamble to the 1986 rights of way regulations (51 FR 26836).

We relied on the monetary value of past similar rights or privileges, which we believe is a good yardstick. We reviewed each type of document, and compared the proposed processing fee for a given type of document with our knowledge of the historical values of rights or privileges granted similar to those sought by the applicant. In each case, we believe the value of the right or privilege is clearly so much greater than the processing cost that a fee set at the average actual cost would not significantly impact the proposed project. Please note, the only fixed fee in this proposed rule that exceeds $390 is for the administrative processing of a mineral patent application (excluding the cost of the mineral examination and report), for which the proposed fee is $2,290. All other proposed fees range from $9 to $390. The costs this rule would recover pertain to documents related to the development of commercial minerals, so it is not surprising that the monetary value of the right or privilege is greater than these proposed fees. Therefore, we did not reduce any fees as a result of this factor. We will consider monetary value for case-by-cases fees in a similar manner.

BLM bases its decision about the value of the right or privilege on monetary value at the time the lease application is submitted. All leases have relatively large monetary value before exploration compared to the proposed fees. The intrinsic value of the opportunity afforded by a lease to explore for minerals is shown by the willingness of industry to pay large sums before exploration for bonus bids (for coal leases), for lease transfers, and for exploration activities such as drilling. We therefore decided that it is reasonable to charge a fee equal to our processing costs for all lease applications.

In accordance with the Solicitor's Dec. 5, 1996 Opinion on cost recovery, BLM considers that its processing costs to prepare parcels for sale or lease sale benefit three classes of beneficiaries: the party who requests that the parcel be included in the sale or lease sale; all parties who bid on the parcel; and the successful bidder.

While the party who requests that a parcel be included in a sale or lease sale benefits by influencing the selection of parcels offered, we believe this benefit is greatly outweighed by the benefits to the bidder who ultimately obtains the lease or sales contract and can develop the minerals on the parcel. Similarly, while all bidders get the chance to be considered for a lease or sales contract, BLM believes this benefit is greatly outweighed by the benefits to the bidder who obtains the lease or sales contract. We would therefore charge all processing costs to prepare a parcel for lease or sale to the successful bidder.

We wanted to be sure that the process of collecting fees is not itself overly costly. For example, we would not collect cost data on a case-by-case basis for each document processed because that kind of cost tracking is simply inefficient—employees' tracking time spent on each document just adds to the processing costs.

We looked for other ways to establish fees and decided that for most documents in this rulemaking, it was more efficient and sufficiently reliable to set a fixed fee. As discussed above, when fixed fees would be unreliable or unreasonable, we would track costs on a case-by-case basis.

Yes. The processing procedures are based on standardized steps in BLM Handbooks in order to eliminate duplication and extraneous procedures. These detailed and measurable processing steps were developed to be efficient.

Yes. Activities that only benefit the public are those that are not done in connection with processing a particular document. These would include studies which BLM is required to perform whether or not it receives an application or other document processing request, such as land use planning studies and programmatic environmental analyses prepared by an agency at its own instigation. We would not recover the costs of such studies from applicants. Therefore, BLM did not consider studies or data that only benefit the public when it considered the public benefit factor in establishing the fixed fees proposed in this rule.

Yes. Courts have held that if the processing of an application requires that a study be done, the performance of that study necessarily benefits the applicant. See, e.g., Mississippi Power & Light Co. v. United States Nuclear Regulatory Comm'n, 601 F.2d 223, 231 (5th Cir. 1979). The most obvious benefit is that the application may be approved and the applicant can then operate. If a study is required, we cannot approve an application unless the study is performed, and if we do not approve an application, the applicant cannot take the action for which it seeks approval.

There are other potential benefits, as were pointed out in the preamble to BLM's 1986 rights-of-way regulations:

Possible public benefits from BLM processing activities such as studies or data collection are also speculative. For example, studies related to document processing often provide natural resource information about an area, and this is sometimes a public benefit, but its value or whether there will be a benefit at all is not predictable. BLM concluded that document processing for types of fixed fee documents in this rulemaking does not usually produce studies or data significantly beneficial to the public.

Also, except for fees determined on a case-by-case basis, BLM determined that for each type of document in this rulemaking the monetary value to the applicant outweighs the possible benefit of such studies to the public. BLM analysts used their knowledge of the historical values of such cases to make these determinations. We have therefore decided that this factor does not warrant setting any fee in this rulemaking at less than its actual processing cost.

A project's service to the public concerns whether the applicant's project itself, as opposed to BLM's processing the related documents, provides some significant direct service or benefit to the general public. This is referred to in the statute as “public service.” Examples would be improvements such as roads, trails, or recreation facilities. But not every improvement provided by a project is considered a public service. A negative impact on such things as wildlife or surface drainage may prevent BLM from considering an improvement as a public service.

Yes. Applicants for prospecting permits for nonenergy minerals are required to share with the government the mineral resource data obtained from exploration. If the information is valuable for mineral development, we expect the prospecting permit holder will use it. In that case, the monetary value of the information to the permittee would far outweigh its benefit to the public.

We considered that even information which is not valuable to the prospecting permit holder for mineral development may still provide a small geological or geophysical information benefit to the government, which could sometimes be used in types of resource management such as land classifications. However, because there is very little information obtained in this way and because its use is unpredictable, the potential benefits of the information to the public are too small to warrant an adjustment to the proposed fee.

No. Large projects could include road construction, but such roads are rarely open to the public or built to public safety standards. Also, they must eventually be removed. These roads also often do not serve the public interest because they cause erosion and drainage problems and, if opened to the public, can bring too many people into sensitive areas. Thus, for fixed fee documents, the possibility of such a public service is too remote and speculative to warrant charging a fee less than actual costs. If any projects do provide such a public service, it is more likely to be those that require an environmental impact statement. For those projects, we will consider all of the reasonableness factors, including public service, on a case-by-case basis.

Yes. Protests of mineral patent applications provide a benefit to BLM by reducing the potential for error in the patent process. The fee for processing patent protests was therefore set at $50, which is less than BLM's actual processing cost of $255.

BLM did not find other factors that made it reasonable to adjust fees set in this proposed rulemaking. When BLM charges fees on a case-by-case basis, applicants could raise other factors during the fee-setting process.

[Please note, the proposed regulatory language below is based on regulations as they now exist. However, BLM has recently proposed changes to parts 3100 (oil & gas) and 3809 (surface management) of this title. We may need to change any final regulations which result from this proposal to fit with new regulations at those parts, should BLM issue final rules in either program.]

BLM has determined that this proposed rule is administrative and involves only procedural changes addressing fee requirements. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of the National Environmental Policy Act, pursuant to 516 Departmental Manual (DM) 2.3A and 516 DM 2, Appendix 1, Item 1.10. In addition, the proposed rule does not meet any of the 10 criteria for exceptions to categorical exclusions listed in 516 DM 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department of the Interior, the term “categorical exclusions” means categories of actions which do not individually or cumulatively have a significant effect on the human environment and which have no such effect in procedures adopted by a Federal agency and therefore require neither an environmental assessment nor an environmental impact statement.

This rule does not contain information collection requirements that the Office of Management and Budget must approve at this time under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. This rule potentially affects the following information requirements approved under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.:

This rule affects the information collections just listed not by decreasing or increasing the information requirements described in these collections but by establishing or changing the costs of filing the applications and reports included in these collections. When this rule becomes final, BLM will file change notices with the Office of Management and Budget (OMB), Form 83c, to reflect the new or changed fees established by the final rule.

This rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. For the purposes of this section a “small entity,” as defined by the Small Business Administration for mining (broadly inclusive of metal mining, coal mining, oil and gas extraction, and the mining and quarrying of nonmetallic minerals) is an individual, limited partnership, or small company considered to be at “arm's length” from the control of any parent companies, with fewer than 500 employees. The SBA defines a small entity differently, however, for leasing of federal land for coal mining: a coal lessor is a small entity if it employs not more than 250 people, including people working for its affiliates. SBA would consider many of the operators the BLM works with in the onshore minerals programs small entities. [We note that this proposed rule does not affect service industries, for which the SBA has a different definition of “small entity.”]

The proposed rule will affect a large number of small entities since nearly all of them will face fee increases for activities on public lands. However, we have concluded that the effects will not be significant. As discussed in an analysis prepared by BLM and available as an attachment to our Record of Compliance for this proposed rule, when the total fees paid by these entities are expressed as a percentage of their sales value it is clear that the relative size and effect of the fees are very small and that they will have no measurable effect on these entities.

For example, we estimate that under this rule oil and gas operators on public lands would pay an extra $2,052,000 in fees annually, but the small operators in the oil & gas program generate sales of $2.9 billion to $4.8 billion annually, so the increased fees would be 0.04% to 0.07% of sales, even assuming small operators bore the entire fee increase. The small operators developing mineral materials on public lands generate $60 million to $99 million in annual sales, while the total fees for the mineral materials industry would rise by about $866,000, or 0.875% to 1.443% of sales. This is the highest percentage of sales versus increased fees.

Additionally, for mineral materials, based on data for FY96, FY97, FY98, this proposed rule would affect on average only about 13.5% of the disposals on public lands. The rule would not affect the remaining 86.5% of disposals, consisting of small sales from community pits, and common use areas, and free use permits to government entities and non-profit organizations. And, of course, this rule would not affect small operators on non-public lands.

Finally, we note that most of the proposed fees are charged only once and, therefore, the impact is spread over several years of industry production. This has the effect of lessening the impact even further. Also, leasable and mineral materials sales are for fair market value, so we can expect bonus bids to decline in order to offset and neutralize the new or increased costs.

Due to the size of the proposed fee increase, it is worth discussing mineral patent adjudication and associated mineral examination fees and their possible effect on small entities. These fees apply to hardrock mineral patent applications under the Mining Law of 1872, which, when approved, result in a transfer of title from the United States to the mining claimant. Patenting is a voluntary process and is not required under the law. Mining claimants who have found a valuable mineral discovery on the public lands and properly located a claim may mine and market the minerals on the claim without a patent and without paying any royalties to the United States.

Fixed fees for patent applications are set in this proposed rule at $2,290 for adjudication of title and sufficiency of the application, plus a case-by-case fee for the actual mineral examination of the mining claims or sites in the application. Although this is an appreciable increase, it is not significant compared to the capital expenditures associated with many hard rock mining ventures, which may range from hundreds of thousands of dollars for small operations to hundreds of millions of dollars for large ventures. The smaller the entity, the more likely it is that the application will seek to patent fewer mining claims, reducing the time needed for BLM's mineral examination. Because fees for the mineral examination are based largely on a case-by-case tracking of our actual time and the costs to us, applications with fewer claims will generally be charged fees at the low end of the possible range.

BLM is also operating under a moratorium for processing any new mineral patent applications and a Congressional Five-Year Plan (Public Law 104-134) which required the Secretary to establish a plan for how the Department would complete its review of 90% of grandfathered mineral patent applications by September 30, 2001. Because of the patenting moratorium, future activity in the adjudication and mineral examination of mineral patent applications is expected to decline significantly in the near future and thus these fees will be rarely applied. Moreover, because claimants have a recognized property interest in a valid unpatented mining claim and can enjoy the benefits of mining and marketing from their claims without ever applying for a patent, a claimant could avoid these fees simply by not filing a patent application even if the moratorium were lifted.

For many document types, BLM will establish charges on a case-by-case basis. In these situations, the applicant/operator has the opportunity to present data to BLM on the reasonableness of the fees (the Federal Land Policy and Management Act lists six factors which the BLM must consider in setting a reasonable processing fee, discussed above). If, for example, the entity is small and has a small operation, the monetary value factor may cause BLM to reduce the fee(s). When the entity is small but has large operations that are high in monetary value, it must have access to large amounts of capital and the increased fees will not have a significant detrimental effect. In any case, the entities may appeal case-by-case fees if they believe BLM is being unreasonable in its calculations.

This proposed rulemaking will not result in any unfunded mandate to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

In accordance with Executive Order 13132, the proposed rule does not have significant effects on federalism, and therefore a federalism assessment is not required. The proposed rule does not change the role or responsibilities between Federal, state, and local government entities. The rule does not relate to the structure and role of states and will not have direct, substantive, or significant effects on states. It may result in a slight decrease in bonus bids which BLM shares on a 50-50 basis with the states. However, the effect would be negligible over the life of a lease.

The proposed rule does not represent a government action capable of interfering with constitutionally protected property rights. The rule has no bearing on property rights, but only concerns recovery of government processing costs for actions which benefit certain entities who acquire rights and extract publicly-owned resources. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

In accordance with the criteria in Executive Order 12866, the BLM has determined that this rule is not a significant regulatory action. The Office of Management and Budget (OMB) makes the final determination under Executive Order 12866. BLM has determined that the rule does not meet any of the criteria for a significant regulatory action. The proposed rule will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities. This determination is based on an analysis which BLM prepared in conjunction with this proposed rule.

This rule will not create inconsistencies with other agencies' actions. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are all encompassed in agreements and memoranda of understanding that will not change with this proposed rule.

In addition, this rule will not materially affect the budgetary impact of entitlements, grants, loan programs or the rights and obligations of their recipients. However, this rule does propose to increase existing fees, and create new fees, for processing documents associated with the onshore minerals programs. This occurs as a result of recommendations by the OIG (Report Nos. 89-25 and 95-I-379) as well as the policy of the Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701 and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. The IOAA and section 304 of FLPMA authorize BLM to charge applicants the cost of processing documents through rulemaking; in addition, the IOAA states that these charges should cover the agency's costs for these services to the degree practicable. The OIG reports documented the budgetary impact of delaying collection of fees to reimburse agency costs and strongly admonished BLM to collect the fees proposed in this rule. Finally, this rule will not raise novel legal or policy issues. Some of the proposed rule may be controversial (e.g., increased or new fees), but the issues are not novel. Some have been tried in the past and some are currently in use by some State governments.

In accordance with Executive Order 12988, BLM finds that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. BLM consulted with the Department of the Interior's Office of the Solicitor throughout the drafting process.

The principal authors of this rule are Durga Rimal, Roger Haskins, and John Bebout of Solids Group, and Mary Nagel and John Broderick of Fluids Group, assisted by Christopher Fontecchio of the Regulatory Affairs Group, Bureau of Land Management, Department of the Interior, 1849 C Street, NW., Room 501L, Washington, DC 20240; Telephone: 202-452-0372, and Ken Fitzpatrick of BLM's Eastern States Office.

Accordingly, for the reasons we explained in the preamble and the authorities stated below BLM proposes to amend 43 CFR Groups 3000, 3100, 3200, 3400, 3500, 3600, and 3800 as follows:

1. By this document, the Commission proposes to amend its rules to require persons and entities doing business with the Commission to obtain a unique identifying number called the FCC Registration Number (FRN) to be obtained, or in some cases assigned, through the Commission Registration System (CORES). It will enable the Commission to better manage the financial systems of the agency and improve compliance with various statutes that govern the financial operations of the Federal government. The FRN requirement will also allow the Commission to improve the efficiency of its own processes to the benefit of the public.

2. The Commission is required in a variety of contexts to manage and collect substantial sums of money, including annual regulatory fees and application fees (47 U.S.C. 158 and 159) and civil monetary penalties (47 U.S.C. 503; 47 CFR 1.80). The Commission also auctions radio and television licenses through competitive bidding and administers the collection of payments for these licenses (47 U.S.C. 309(j)). In addition, the Commission directs the collection of mandated contributions to the Universal Service Fund (USF) and other statutory programs (47 U.S.C. 254(d); 47 CFR 54.706).

3. In operating these programs, the Commission is subject to a variety of federal statutes designed to ensure that the Government's financial management systems consistently and accurately report assets, liabilities, revenues and expenditures. See, e.g., 31 U.S.C. 3512(b); 4 CFR 102.1(a) and 102.17. In particular, the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321 (1996), codified at 31 U.S.C. 3701, et seq. , sought to address congressional concerns that debts owed to the Federal government were not being properly collected. See United States v. Texas, 507 U.S. 529, 536-37 (1993) (Debt Collection Act was passed “in order to strengthen the Government's hand in collecting its debts”). Recently, review by the Commission's Office of Inspector General (OIG) and by the General Accounting Office (GAO) revealed areas in need of improvement in the Commission's collection systems.

4. In the course of reviewing its collection activities, the Commission has already established a Revenue Accounting and Management Information System (RAMIS), an internal revenue management system that supports application and regulatory fee accounting, spectrum auction loan portfolio management, accounting for auction proceeds, accounting for enforcement actions, and other accounts receivable of the Commission. RAMIS replaces various independent financial management systems currently in use by the Commission. When developing RAMIS, it became clear that entities doing business with the Commission were identified in various ways that made unified accounting and revenue management difficult.

5. To address this problem, the Commission decided to assign a unique 10-digit identifying number called the FCC Registration Number (FRN) that will be used when doing business with the FCC. The Commission Registration System (CORES) was chosen as the mechanism to assign the FRN. CORES went on-line July 19, 2000, to permit the public to obtain FRNs on a voluntary basis. The Commission strongly recommended that the public begin using the FRN with all payments, including on applications, with regulatory fee payments, waiver petitions, auction payments, forfeiture remittances, and other payments and collections. In this proceeding, we propose to require those entities doing business with the Commission obtain an FRN and supply it on certain submissions to the Commission.

6. The need for the FRN. We propose to create a new subpart to Part 1 of our rules that will contain the FRN rules proposed herein, and cross-reference to the new subpart where appropriate in our rules. These proposed rules would make the use of the FRN mandatory in certain circumstances so that anyone not yet assigned an FRN or who has not yet obtained one must obtain one. These proposed rules would also address when the FRN will have to be provided with a filing. This will reduce the number of identifiers used by public entities in an effort to simplify their interaction with the Commission.

7. The reports of our own Inspector General and the GAO clearly indicated the need for a reassessment of our recordkeeping of monies collected. The collection of regulatory and application fees, auction payments, auction loan payments, and other monies due to the United States must be processed expeditiously and recorded properly. We tentatively conclude that the FRN will provide us with an improved mechanism for properly recording and tracking payments made to the Commission. The FRN will enable us to maintain the integrity and efficiency of the Commission's collection systems, correct the deficiencies identified in our accounting systems, improve customer service, and increase our efficiency. The FRN will enable us to ensure that fee payers' accounts are properly credited, resulting in fewer letters requesting confirmation of payment and making it easier for us to respond to inquiries. The FRN will enable us to assure that entities that claim to be exempt from paying fees are validly entitled to the exemption. The information entered into the CORES system will also eliminate repetitive collection of data and will enable the Commission by electronic mail to inform the public of refunds and send other informational alerts. The Commission intends to use the information to verify that entities doing business with the Commission have made proper payments, and to mail annual fee schedules and other materials.

8. While the FRN will be used with all FCC licensing and filing systems, it will not replace call signs, license numbers, certification numbers, or other numbers in authorization of service documents. Moreover, the CORES system will not replace the Commission's licensing or filing databases as a source of information about licensees. The FRN relates to the licensee, not the license, so that modification of a license does not affect the FRN or require the licensee to obtain a new FRN. However, if a license is transferred, the new license holder must have its own separate FRN.

9. Who Must Obtain an FRN? We propose that anyone doing business with the Commission, as that term is defined by the DCIA, 31 U.S.C. 7701(c)(2), must obtain an FRN. Thus, all businesses and individuals that file applications with the Commission—whether feeable or non-feeable—or make any payments of any type to the Commission will be required to obtain an FRN and provide it to the Commission in its filings. We note that this includes entities making contributions to the USF. The requirement applies not only to fee payers, but also to anyone filing an application who would pay a fee except for an exception in our rules or the statute, such as amateur radio operators, not-for-profit entities, and state and local governments. See 47 CFR 1.1114 and 1.1162. CORES registration will help us keep track of entities that claim they are exempt from paying fees. We include non-feeable items to facilitate compliance with the DCIA, which requires that anyone doing business with the federal government provide a taxpayer identifying number (TIN) to the government. See 31 U.S.C. 7701(c)(1). An FRN for these types of entities will also enable us to better respond to fee inquiries from these entities. We also propose to permit counsel and representatives of entities doing business with the Commission to obtain an FRN, but seek comment on this proposal. Finally, in certain instances when we cannot reasonably expect the party to obtain an FRN, discussed below, we propose to assign one.

10. To ease the transition to CORES, we assigned FRNs to entities already in the Universal Licensing System (ULS) TIN Registration database and whose service has been converted to ULS. This procedure assigned separate FRNs to hundreds of thousands of entities. In addition, the spectrum auction loan portfolio currently uses a Customer Information File (CIF) number to collect payment data from the debtors. Each bill to the debtor refers to this number and we already request that it be included in the payment information to assure proper credit. We will be converting from this number to the FRN. Auction licenses issued through ULS will probably already have a FRN assigned during the data conversion. Those entities that do not currently have an FRN based on these conversions can obtain one from our website, by mailing FCC Form 160 to the Commission, or by sending Form 160 along with an application or payment.

11. Some foreign entities are already registered in the ULS, and will be assigned an FRN as described above. We propose that those foreign entities that have not obtained TINs will be assigned an FRN by the CORES administrator.

12. An unusual category of fees is fees collected under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Our rules generally require that a FOIA requestor represent its willingness to pay applicable FOIA fees, and when the fee amount is determined a bill is issued. We receive FOIA requests from businesses and individuals, some of which regularly interact with the Commission and others that do not. We seek comment on whether FOIA requestors which have an FRN should have to provide it to the Commission when making a FOIA request, or for other FOIA requestors, whether an FRN should be assigned by the Commission upon issuance of a bill for the applicable FOIA fee. In a similar vein, we seek comment on whether due diligence requesters, who must pay research and copying fees, should have to acquire an FRN and provide it to the Commission.

13. Another unusual category is entities against which a forfeiture has been assessed. See 47 U.S.C. 501, et seq. Often these entities or individuals will have an FRN by virtue of their prior dealings with the Commission, but there may be many instances when an individual or business has not previously obtained an FRN. When we issue a notice of apparent liability (NAL) or other forfeiture-related order, we will attempt to discern the party's FRN. If the party does not have one, we will assign one and notify the party. Parties making forfeiture payments should submit the FRN of the party to whom the forfeiture was issued, regardless of whether the forfeiture is being paid directly by the subject or by counsel on behalf of a client. Similarly, parties to consent decrees involving voluntary contributions to the United States Treasury should also submit the FRN with their payments.

14. Multiple FRN issues. When we announced CORES, and held a forum discussing the implementation of CORES, we indicated that the system was designed to permit each entity with a separate TIN to obtain a separate FRN. We also indicated that FRNs could be obtained for as many separate business operations as an entity may require in its judgment, including a separate registration number for subsidiaries or sub-agencies, customers, or clients, even if these entities have the same TIN. In addition, an entity that has one TIN but many subdivisions that hold licenses or authorizations from the Commission may wish to have different FRNs for each subdivision. We include these proposals in this Notice.

15. We do not wish to create a situation in which one entity has obtained many FRNs, and uses a different FRN for different or even the same transaction. We are concerned that if we permit representatives or counsel to obtain and provide an FRN, we will still not know on whose behalf a payment is being made. Separate FRNs for related entities might complicate any future attempts to determine whether all related entities have paid all debts owed to the Commission. Limitations in CORES, RAMIS, and the Commission's filings systems may also require a different approach. We therefore seek comments on whether we should limit the number of FRNs that an entity may obtain, and whether we should penalize entities that abuse CORES by obtaining multiple FRNs. We also seek comment on whether we should include in our rules requirements that would address these issues, or adopt a new form that would enable us to identify and link all related entities.

16. What is included in CORES? The information collected by CORES includes entity name, entity type, TIN, contact address, and e-mail address. CORES is a system of records that contains identifying information about individuals and is subject to the Privacy Act. The information in CORES is for Commission use only and will not be published or distributed, although CORES has a query search that allows the general public to find the FRN, name, date and time of registration. CORES information may be shared with other governmental organizations as authorized under the DCIA and for other routine uses as described in the Privacy Act notice. CORES is designed so that TINs will not be available to the public. Accordingly, members of the general public will not be able to access CORES using TINs. Only a small number of Commission employees will have access to TIN information in conjunction with their work.

17. We will require that information provided to CORES must be kept current by the entities that secure the FRN. Changes and updates may be made to the password, name, address, contact representative name, contact address, contact telephone number and contact e-mail address on-line by visiting the FCC's web page or manually by filing FCC Form 161 (CORES Update/Change Form). The various licensing systems in use at the Commission will continue to be the source for a licensee's official mailing address on a specific license.

18. When must the FRN be including in a filing with the Commission? We propose that FRNs must be provided with any filings requiring payment of a fee. FCC Form 159, used in both electronic and paper filings requiring fees, has been modified to accommodate this requirement. In addition, we propose that any filing not requiring a fee but requiring a TIN under the DCIA must include an FRN. FCC Form 162 is the appropriate vehicle for providing the FRN in these instances. We also seek comment on whether we should attempt to develop a comprehensive list of items requiring the FRN, but caution that this may difficult to do.

19. We invite the public to submit in comments any questions concerning specific circumstances in which the FRN must be provided. However, we note that certain filers, such as commenters in rulemakings and members of the public and others petitioning to deny or objecting to the issuance of a Commission authorization, need not obtain or submit an FRN, even if they have one, in order to participate in the Commission proceeding. Letters, reports that do not require payment of a fee, or electronic mail communications to the Commission do not generally require an FRN. Persons searching databases such as ULS to verify information will not require the FRN to search the database. Also, pleadings will not require an FRN so long as no fee is required.

20. We propose that counsel or other representatives that makes fee payments on behalf of one or more clients should provide their FRN and the FRN of the client or clients with the payments. Counsel and representatives should take care to ensure that when making payments on behalf of clients, they identify the client and the amount being paid, ensure that the client's FRN is included, and ensure that the FRN provided is the proper one for their client. We seek comment on this proposal. We also propose to amend section 1.221(f) of our Rules, 47 CFR 1.221(f), to require that when a written appearance that must be accompanied by a fee payment is required, counsel must provide an FRN.

21. In feeable complaint proceedings, we tentatively conclude that either the complainant (or in a multiple party complaint, the lead complainant) and the counsel on behalf of the complainants should submit their FRNs. We seek comment on whether all complainants in feeable complaint proceedings should provide their FRN.

22. How will the FRN be reported? The FRN will be included primarily on the FCC Form 159 that is required whenever a fee is paid. In addition, all FCC application forms will be amended either as they come up for renewal under the Paperwork Reduction Act (PRA) or if other changes are made to the paper forms to include a field for the FRN. Applications and electronic filings requiring an FRN have been or will be amended to include a field for the FRN. For non-feeable items requiring an FRN, or if there is no application form but the FRN is required, the FRN can be provided on FCC Form 162.

23. Failure to provide the FRN. Except as described below, we propose to reject filings that require an FRN but do not include it. We have such a standard currently for application fees (47 CFR 1.1109, 1.1112 and 1.1116), regulatory fees (47 CFR 1.1157 and 1.1164), and applications generally (47 CFR 1.764). We tentatively conclude a similar standard is required for the FRN. As discussed above, the FRN will be required on the FCC Form 159 filed with fee payments, on all application forms as amended to include the FRN, or on FCC Form 162 to accompany forms that have not yet been amended to require the FRN or applications that do not have specific forms. Our rules already address the completeness of applications. E.g. , 47 CFR 5.65(a); 25.112(a)(1); 25.527; 73.3564(a)(1); and 78.20(a).

24. Failure to include the FRN would render the application incomplete. We propose that when an application is filed without an FRN, we will not accept the application. The application may be re-submitted with the FRN, but we propose that the date the re-submitted application is received by the Commission or its agent will be considered the date of filing. If an application is resubmitted with the FRN after the specified deadline for filing, it will be considered late-filed and subject to appropriate action. If an application is accepted and it is later discovered that it lacks the FRN, failure to include the FRN will be deemed grounds for dismissal. Application fees may be retained as we do in other circumstances in which applications are dismissed as defective. Compare 47 CFR 1.1113 with 47 CFR 1.1108. Because application processes vary among our Bureaus, we propose to include in Part 1 Subpart W a generally applicable rule concerning the handling of filings that omit the FRN, and appropriate cross-references to this new subpart. We seek comment on whether this approach is sufficient, or whether we need to amend individual rules governing specific applications. Such comments should specifically identify which rules are believed to require amendment. We also seek comment on how to handle any auction up-front payments, down payments, or auction loan payments made without an FRN, but note that auction registration will require an FRN. We also seek comment on whether the failure of counsel or a representative to provide his or her FRN should affect the status of an application or filing.

25. The next filing of regulatory fees will occur in September 2001, and we will consider in the next rulemaking proceeding to establish regulatory fees how to handle circumstances in which the regulatory fee is paid but the FRN is not provided.

26. We seek comment on what should happen if a complainant in a feeable complaint proceeding fails to submit the FRN. We tentatively conclude that in such cases, failure to submit the FRN may result in dismissal. However, we will permit Commission staff the discretion to allow a party to correct this omission within a reasonable period of time, as determined by the staff. In the case of forfeiture proceedings and consent decrees involving voluntary contributions, we intend to retain the forfeiture payments in cases where the subject fails to provide its obtained or assigned FRN.

27. Tariff publications present unique issues. Some are filed electronically, some on paper, and still others are filed on diskette with an accompanying paper cover letter or other transmittal. See 47 CFR 61.13, et seq. (tariff publications filed electronically through ETFS); 47 CFR 61.1, et seq. (publications filed on paper or diskette). Regardless of how the publication is filed, the payment of the applicable fee is made separately, either electronically or by mail. In addition, there are varying notice periods for tariff publications to become effective, ranging from a maximum of 120 days to the same day. See 47 U.S.C. 203(b) (maximum 120 days notice); 204(a)(3) (seven or fifteen days' notice for local exchange carriers); and 226(h)(1)(A) (“changes in [informational tariff] rates, terms, or conditions shall be filed no later than the first day on which the changed rates, terms, or conditions are in effect”); 47 CFR 61.23(c) (one day's notice for non-dominant carriers). There are therefore different processing and fee payment arrangements. See generally 47 CFR 61.13 et seq. , 61.18, et seq. , 61.28, et seq. , and 61.31, et seq. Finally, there are limits on what actions we may take once a tariff publication has become effective. See, e.g. , 47 U.S.C. 204(a) (suspension and investigation of tariff publications) and 205(a) (action on unlawful tariff publications). We propose the following actions regarding the FRN and tariff publications. We propose to modify the ETFS so that a carrier authorized to use that system will be required to provide not only its regular password and login but also its assigned FRN and FRN password to gain access. Also, both the paper and electronic versions of the Form 159, which accompany fee payments, have been amended to include a field for the FRN. In addition, the FRN will be required on the cover letter or other transmittal accompanying each tariff publication. We seek comment on how we should treat tariff publications that omit a valid FRN. For example, should such publications be rejected, declared unlawful, or be subject to other action.

28. Authority. Section 4(i) of the Communications Act, 47 U.S.C. 154(i), authorizes the Commission “to perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” See New England Tel. & Tel. Co. v. FCC , 826 F.2d 1101, 1108 (D.C. Cir. 1987) (section 4(i) serves as the Communications Act's “necessary and proper clause”); see also 47 U.S.C. 303(r) (authority to prescribe rules and regulations to implement the Communications Act). Pursuant to section 8 and 9 of the Communications Act, as amended, we have broad authority to “prescribe appropriate rules and regulations” in the assessment and collection of charges and fees. 47 U.S.C. 158(f) and 159(f)(1). See also 47 U.S.C. 309(j) (Commission is authorized to prescribe rules to implement competitive bidding for spectrum); 47 U.S.C. 254(d) (carrier contributions to USF). We believe these provisions of the Communications Act authorize us to require entities interacting with the Commission to obtain and provide the FRN to us.

29. Paperwork Reduction Act. We have obtained Office of Management and Budget (OMB) approval under the Paperwork Reduction Act (PRA) for the information collections related to CORES and the FRN. FCC Form 159 has been amended to include the FRN under OMB Control Number 3060-0589. FCC Form 160, the CORES Registration Form, received OMB approval under OMB Control Number 3060-0917. FCC Form 161, the CORES Update Form, received OMB approval under OMB Control Number 3060-0918. FCC Form 162, the CORES Certification Form, received OMB approval under OMB Control Number 3060-0919. Providing the FRN for non-feeable items, and a blanket request to update any other FCC forms to include the FRN, was obtained from OMB in OMB Control Number 3060-0728. As FCC forms are modified, the FRN requirement will be included when we seek OMB approval for the modifications. We may, as a result of comments received in this proceeding and our further consideration of these matters, adopt reporting or recordkeeping requirements subject to the PRA. We will seek OMB approval for such information collections at that time.

30. Regulatory Flexibility Act. We hereby certify, and tentatively conclude we will be able to so certify if we adopt these rules in final form, that the rules proposed in this Notice will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The rules require certain entities or individuals to obtain an FRN. A substantial number of entities doing business with the Commission automatically received their FRN by virtue of their prior registration in the ULS. We have proposed to make it extremely simple, and virtually cost-free, for anyone else to obtain an FRN. Nor do we believe the proposed rule amendments establishing penalties for failure to provide the FRN will have a significant economic impact on a substantial number of small entities. Our rules already generally provide for penalties when applications are not substantially complete. The proposed rule amendments simply conform our rules to the new FRN requirement. Therefore, the rules will not have a significant economic impact. We invite comments on this tentative conclusion.

31. Ex Parte Matters. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under Section 1.1206(b) of the rules. 47 CFR 1.1206(b), as revised. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. See 47 CFR 1.1206(b)(2), as revised. Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b).

32. Comment Filing. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments filed through ECFS may be sent as an electronic file via the Internet to <www.fcc.gov/e-file/ecfs.html>. Generally, only one copy of an electronic submission must be filed. When completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To receive filing instructions for e-mail comments, commenters should send an e-mail to <ecfs@fcc.gov>, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If participants want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. Parties should reference MD Docket No. 00-205 in their comments.

33. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. Comments and reply comments will be available for public inspection during regular business hours in the Reference Information Center (Room CY-A257) of the Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Washington, DC 20554. Copies of comments and reply comments will also be available through the Commission's duplicating contractor, International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, TTY (202) 293-8810.

34. Further Information. Additional information concerning CORES is found in the Frequently Asked Question portion of the CORES homepage on our Internet site, located at <www.fcc.gov> and by clicking on the CORES link.

35. Pursuant to Sections 4(i), 8(f), 9(f)(1), 254(d), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 158(f), 159(f)(1), 254(d), 303(r), and 309(j), and 31 U.S.C. 7701(c)(1), this Notice of Proposed Rulemaking is hereby adopted.

36. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposed to amend 47 CFR Parts 1, 21, 61, 73, 74, and 76 as follows:

On November 13, 2000, NHTSA published a notice of proposed rulemaking (NPRM) proposing to amend the rear impact test in Standard No. 301, Fuel System Integrity. The current test procedure requires the entire rear of the vehicle to be impacted by a flat, rigid barrier at speeds up to 48 km/h (30 mph). Under the proposal, NHTSA would replace that full rear impact test procedure with an offset rear impact test procedure requiring only a portion of the rear of the vehicle to be impacted with a lighter, deformable barrier at 80 km/h (50 mph). The agency has tentatively concluded that the new, more stringent test procedure will save lives and prevent injuries.

In the NPRM, the agency also proposed to change Standard No. 301's procedure for side impact tests. Currently, the standard specifies a side impact test procedure that differs from the test procedure in our standard on side impact protection (Standard No. 214, Side Impact Protection). Under the proposal, NHTSA would specify that the test procedure in Standard No. 214 be used for Standard No. 301 as well. The agency has tentatively concluded that this change will provide a more realistic test, increase safety, and reduce testing costs.

The NPRM specified a comment closing date of January 12, 2001 (60 days after the date of publication). However, on December 8, 2000, the agency received a request for an extension of the comment closing date from the Alliance of Automobile Manufacturers (Alliance). The Alliance stated that it wishes to provide comments on the proposal, but will be unable to do so in a timely fashion due to the complexity of the issues involved and the traditional holiday shutdowns in the U.S., Europe, and Japan. Specifically, the Alliance requests additional time to allow its members to conduct testing and gather data so that the Alliance may respond more fully to the proposal.

The agency may grant a person's petition for an extension of a comment period if the petition shows good cause for the extension, and if the extension is consistent with the public interest. 49 CFR 553.19. The agency concludes that the petitioner has made that showing and that an extension is in the public interest. An extension would aid the Alliance and other interested parties in fully responding to the proposed changes to Standard No. 301. Accordingly, this notice extends the comment closing date to February 12, 2001.