On February 27, 2001 (66 FR 12435), the NRC published in the Federal Register a direct final rule amending its regulations in 10 CFR part 72 by revising the BNFL Fuel Solutions FuelSolutions TM cask system listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 1 to the Certificate of Compliance (CoC). Amendment No. 1 will modify the present cask system design to allow the Big Rock Point nuclear facility to store mixed-oxide fuel assemblies, partial fuel assemblies, and damaged fuel assemblies (in a can) under a general license. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on the date noted above. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule will become effective as scheduled.

The Commission is announcing the effective date of revised regulations at 11 CFR Parts 100, 109 and 110, that address expenditures for coordinated communications that include clearly identified candidates, and that are paid for by persons other than candidates, candidates' authorized committees, and party committees. The rules, which largely follow the United States District Court for the District of Columbia's decision in Federal Election Commission v. The Christian Coalition , 53 F.Supp.2d 45 (D.D.C. 1999), address expenditures for communications made at the request or suggestion of a candidate, authorized committee or party committee; as well as those where any such person has exercised control or decision-making authority over the communication, or has engaged in substantial discussion or negotiation with those involved in creating, producing, distributing or paying for the communication. The rules also revise the defintion of “independent expenditure” to conform with this new definition.

Before final promulgation of any rules or regulations to carry out the provisions of Title 2 of the United States Code, the Commission transmits the rules or regulations to the Speaker of the House of Representatives and the President of the Senate for a thirty legislative day review period. 2 U.S.C. 438(d). These rules on coordinated and independent expenditures were transmitted to Congress on January 4, 2001. Thirty legislative days expired in the Senate on March 12, 2001, and the House of Representatives on March 29, 2001.

Announcement of Effective Date: Revised 11 CFR 100.16; 109.1(a), (b)(4), and (d)(1); and 110.14(f)(2) and (f)(3); and new 11 CFR 100.23, as published at 65 FR 76138 (Dec. 6, 2000), are effective as of May 9, 2001.

The final regulations that are the subject of these amendments were originally codified as:

• Civil Air Regulations (CAR) 7.225 and 7.226, recodified as 14 CFR 29.397, effective February 1, 1965, and later amended by Amendment 29-12, effective February 1, 1977; and

• CAR 6.225 and 6.226, recodified as 14 CFR 27.397, effective February 1, 1965, and later amended by Amendment 27-11, effective February 1, 1977, was intended to establish a maximum pilot force for twist controls of 80R inch-pounds.

However, as published, the final regulations contain an error that has long been recognized by the FAA and industry as being misleading and in need of clarification. When these regulations were previously published, we inadvertently omitted the word “inch” in the phrase “Twist controls, 80R inch-pounds”. These technical amendments clarify that the appropriate measurement is to be in “inch-pounds” not “pounds”.

The FAA has received reports that fatigue cracking of the horizontal stabilizer pivot bulkhead has been found on several Boeing Model 767-200, -300, and -300F series airplanes. The cracks occurred in the forward and aft outer chords and the outer chord splice fitting of the Station 1809.5 bulkhead, just above the horizontal stabilizer fitting. Cracking also occurred in the intercostals that support the Station 1809.5 bulkhead. Analysis indicates that these fatigue cracks occur because the flight loads on the horizontal stabilizer in the upper corner of the Station 1809.5 bulkhead are higher than expected. Fatigue cracking in this area, if not found and fixed, could result in loss of the horizontal stabilizer.

The FAA has reviewed and approved Boeing Service Bulletin 767-53-0078, Revision 2, dated April 19, 2001, which describes procedures for repetitive inspections for fatigue cracking of the horizontal stabilizer pivot bulkhead, and follow-on actions, if necessary. The inspections include detailed visual, surface high frequency eddy current (HFEC), and low frequency eddy current (LFEC) inspections, as applicable, of the forward and aft outer chord, aft mid chord, and upper and lower intercostals of the Station 1809.5 bulkhead above the horizontal stabilizer fitting. If cracking is found in the forward outer chord, the service bulletin describes procedures for both a permanent repair and a time-limited repair, which allows accomplishment of the permanent repair to be deferred, provided that a one-time detailed visual inspection for cracks of the chord repair straps is done. The permanent repair includes open-hole HFEC inspections for cracking of certain fastener holes of the chord and longeron fitting, detailed visual inspections for cracking of adjacent structure, and installation of new chords, splices, fairings, and brackets. Doing the permanent repair eliminates the need for the repetitive inspections described in the service bulletin. The permanent repair is provided as an optional preventative modification for airplanes on which no cracking is found. Throughout the procedures in the service bulletin, the service bulletin specifies to contact Boeing for repair instructions if cracking is found in areas other than the forward outer chord.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to find and fix fatigue cracking of the horizontal stabilizer pivot bulkhead and adjacent structure, which could result in loss of the horizontal stabilizer. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

This is considered to be interim action. The FAA is currently considering requiring installation of the permanent repair described in the service bulletin, which would constitute terminating action for the repetitive inspections required by this AD action. However, the planned compliance time for the installation of the modification is sufficiently long so that notice and opportunity for prior public comment will be practicable.

The compliance time for the initial inspection required by this AD differs from the compliance time for that action in the service bulletin. The service bulletin recommends that the initial inspection be done before the accumulation of 10,000 total flight cycles, or, if the total number of total flight cycles is close to or more than 10,000, at the earlier of 3,000 flight cycles or 18 months after receipt of the service bulletin. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition and the average utilization of the affected fleet. In light of all of these factors, the FAA finds a compliance time of 8,000 total flight cycles, or 90 days after the effective date of this AD, whichever comes later, for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

This AD also differs from the service bulletin with regard to disposition of certain repair conditions of the forward outer chord. While the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this AD requires repair of those conditions per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle ACO, to make such findings.

This AD also differs from the service bulletin in cases where cracking is found in the aft outer chord, aft mid chord, or intercostals. The logic diagram in Figure 1 of the service bulletin specifies to repair cracking in these areas per data from the airplane manufacturer, and repeat the detailed visual inspection at the earlier of 3,000 flight cycles or 18 months and the HFEC/LFEC inspections at the earlier of 6,000 flight cycles or 36 months. For airplanes on which cracking is found in the aft outer chord, aft mid chord, or intercostals, this AD does not require these repetitive inspections at these intervals. The FAA finds that, because the service bulletin does not include instructions for repair of cracking in areas other than the forward outer chord, repairs of the aft outer chord, aft mid chord, or intercostals must be accomplished per a method approved by the FAA, as required by paragraph (c)(1) of this AD. The FAA will approve any repetitive inspection requirements along with the repair method.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-51-AD.” The postcard will be date-stamped and returned to the commenter.

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

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

On April 10, 2001, the Federal Aviation Administration (FAA) issued emergency airworthiness directive (AD) 2001-08-51, applicable to CFMI CFM56-5C turbofan engines, which requires within 10 days after the receipt of that AD, an initial inspection of the fuel manifold for wear or chafing; and an initial inspection of the CJ9L harness for wear and correct installation, for clamp wear and to verify a minimum clearance between the CJ9L harness and the fuel manifold. Repetitive inspections of the fuel manifold, clamps, and CJ9L harness are also required within every 500 hours time-in-service until the new configuration clamps are installed on the harness. That AD was prompted by a report of a significant engine fuel leak under the thrust reverser cowls at the fuel manifold level on a CFMI CFM56-5C turbofan engine that was installed on an Airbus Industrie A340 airplane. The leak was confirmed to be coming from a hole in the fuel manifold pigtail. The hole was a result of interference and chafing between the CJ9L harness high pressure turbine clearance control (HPTCC) sensor lead and fuel manifold. This was the second fuel leak event at this location. Additional engine inspections by the operator who experienced the engine fuel leak discovered two other engines exhibiting interference of the CJ9L harness with fuel manifold and chafing of the fuel manifold. In addition, since the FAA issued the emergency AD, chafing was found on the CJ10L harness, located on the other side of an engine from the CJ9L harness. The investigation has identified three causes for lack of clearance between the HPTCC harnesses and the fuel manifold:

(1) Incorrect routing of the CJ9L and CJ10L harnesses,

(2) Incorrect orientation of the CJ9L and CJ10L harness cushion clamps, and

(3) Wear of the silicone material in the clamp which allows the harnesses to move within the clamp. This clamp material is used on older configuration clamps. The later configuration uses a metallic material.

The actions specified by this AD are intended to prevent fuel leakage on the hot section or in the primary fire zone of the engine, which may result in an engine fire and subsequent damage to the airplane.

Since emergency AD 2001-08-51 was issued, it has been determined that the same unsafe condition exists at the CJ10L HPTCC harness, located on the opposite side of the engine from the CJ9L harness.

The FAA has reviewed and approved CFMI Alert Service Bulletin (ASB) No. CFM56-5C S/B 73-A0106, Revision 1, dated April 19, 2001, that specifies procedures for inspection of the fuel manifold for wear or chafing, and inspection of the CJ9L harness for wear and correct installation, for clamp wear and to verify a minimum clearance between the CJ9L harness and the fuel manifold.

CFMI ASB CFM56-5C S/B 73-A0106, Revision 1, dated April 19, 2001, requires only inspections of the CJ9L HPTCC sensor harness. The FAA has determined that the same inspections must be performed on the CJ10L HPTCC sensor harness, located on the opposite side of the engine from the CJ9L harness.

Although none of these affected engine models are used on any airplanes that are registered in the United States, the possibility exists that the engine models could be used on airplanes that are registered in the United States in the future. This AD is being issued to prevent fuel leakage on the hot section or in the primary fire zone of the engine, which may result in an engine fire and subsequent damage to the airplane. This AD requires within 10 days after the effective date of this AD, an initial inspection of the fuel manifold for wear or chafing; and an initial inspection of the CJ9L and CJ10L harnesses for wear and correct installation, for clamp wear and to verify a minimum clearance between the harnesses and the fuel manifold. Repetitive inspections of the fuel manifold, clamps, and the CJ9L and CJ10L harnesses will be required within every 500 hours time in service until the new configuration clamps are installed on the harness. The actions must be done in accordance with the service bulletin described previously.

Since there are currently no domestic operators of this engine model, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-08-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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

You can get an electronic copy using the Internet by taking the following steps:

(1) Go to the search function of the Department of Transportation's electronic Docket Management System (DMS) Web Page ( http://dms.dot.gov/search ).

(2) On the search page type in the last four digits of the Docket number shown at the beginning of this final rule. Click on “search.”

(3) On the next page, which contains the Docket summary information for the Docket you selected, click on the final rule.

You can also get an electronic copy using the Internet through FAA's web page at http://www.faa.gov/avr/armhome.htm or the Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html .

You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this final rule.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT . You can find out more about SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us 9-AWA-SBREFA@faa.gov.

In 1991, the FAA initiated a review of part 105, which was originally published in 1962 to determine if the regulation continued to reflect current practices and equipment used in the industry. Among other information, the FAA studied reports received from the Aviation Safety Reporting System (ASRS), the National Transportation Safety Board (NTSB), Air Traffic Unsatisfactory Condition Reports (UCR), and recommendations from the Air Traffic Procedures Advisory Committee and the National Air Traffic Controllers Association (NATCA). Upon completion of the review, the FAA determined that the regulation required revision to be consistent with the parachute equipment used today and current industry practices.

An example of changes that have taken place in the parachute industry since the time part 105 was published is the development of dual-harness, dual parachute systems designed to carry more than one person at a time. In 1983 the FAA began receiving petitions for rulemaking and exemption, requesting changes to the rule allowing use of this equipment. During the 1990's, the FAA received petitions for rulemaking to allow foreign parachutists to jump in the United States without an exemption. Additionally, petitioners requested removal of the requirement for static line assist devices when ram air parachutes were used.

The following is a detailed discussion of these petitions and the FAA's rationale for making the regulatory changes in this final rule.

When part 105 was published in 1962, civilian parachute operations were limited to the use of a single-harness, dual-parachute pack. Since then, the parachute industry has developed dual harness systems that support two people under a single parachute. Because part 105 currently allows parachute operations with single-harness parachutes only, the use of parachute equipment capable of supporting two people has only been authorized by exemption. For purposes of the exemptions, the FAA and the parachuting industry have adopted the term “tandem” to describe those parachute operations that use a dual-harness, dual-parachute system.

The first exemption authorizing tandem parachute operations in the United States was granted to Strong Enterprises and Relative Workshop by the FAA in 1984. Since then more than 2.5 million experimental tandem parachute jumps have been conducted under exemption authority in the United States and abroad. Under the exemptions, various companies conducting tandem parachute operations were required to furnish the FAA with accident statistics on tandem operations, which provided the FAA with the means to evaluate the safety of tandem equipment compared to the safety of equipment and operations currently permitted under part 105.

In July 1997, the United States Parachute Association (USPA) submitted a petition for rulemaking requesting that the FAA permit tandem parachute operations. While considering the USPA petition, the FAA reviewed accident statistics from 1991 through 1996. Based on the information collected during the review, the FAA has determined that experimental tandem parachute operations conducted under an exemption from part 105 have demonstrated that tandem operations can be conducted safely.

Many of the new regulations applicable to tandem parachute operations are based on terms and conditions previously contained in exemptions. Although an exemption will no longer be required to conduct a tandem parachute operation, the FAA has written the regulations to include terms similar to those previously contained in the exemptions. The FAA believes that the continued use of the practices and procedures proven to be safe under exemption will ensure continued safety in these operations. The specific terms and conditions adopted will be discussed under the comment section.

The USPA submitted a petition in July 1997 requesting that the FAA omit the requirement for using a static-line when using direct-deployed, ram-air parachutes. As a basis for its request, the USPA cited a series of tests it performed to determine if assist devices improved the reliability of the static line direct deployment of a ram-air canopy. The tests showed that an assist device does not improve the deployment reliability when used with a static line. Moreover, there was no evidence of adverse effects when the device is removed. As a result of these tests, the FAA has concluded that safety would not be compromised by removing the static-line assist device requirements for ram-air parachutes.

The USPA submitted a third petition for rulemaking in July 1997 requesting that the FAA allow foreign parachutists to make parachute jumps in the United States using their own equipment.

The current regulations require that parachute equipment used in operations conducted within the United States meet the standards set forth under part 105. The practical impact of this requirement is that foreign parachutists could not use their own equipment, usually manufactured in another country, when participating in parachute operations in the United States. The FAA has issued exemptions to organizations sponsoring parachuting events attended by foreign parachutists. This long time practice has demonstrated that operations conducted under these exemptions have been conducted safely. Additionally, the FAA recognizes that foreign manufacturers of parachute equipment often meet U.S. standards.

Based on the review, petitions received, and the collection of data regarding parachute operations, the FAA published a notice of proposed rulemaking (NPRM) (64 FR 18302), on April 13, 1999. The FAA proposed numerous changes, including: (1) Changes in response to the airspace reclassification rule, (2) changes to air traffic control communication requirements, (3) changes to reflect improved parachute design, and (4) changes in industry practices. The notice provided for a 90-day comment period that closed on July 12, 1999.

In response to the NPRM, the FAA received 71 comments. Among the comments received were several comments that are outside the scope of the rule; therefore, those comments will not be addressed in this rulemaking. While the majority of comments submitted to the public docket were from parachutists, comments were also received from drop zone operators; pilots; the Illinois Department of Transportation; the U.S. Department of the Army; the United States Parachute Association (USPA); the U.S. Department of Agriculture, Forest Service; Southwest Airlines Pilots' Association the Aircraft Owners and Pilots Association (AOPA); and the Air Line Pilots Association (ALPA).

The following is a discussion of the substantive comments received in response to the NPRM. Sections that received no comments are not included in this discussion, and are incorporated in the final rule as proposed in the Notice.

Proposal: The FAA proposed to revise paragraph (b) of current § 65.111, Certificate required, which in part, requires that anyone who packs, maintains, or alters a main parachute of a dual parachute pack to have an appropriate current certificate issued under subpart F of part 65. This paragraph also allows non-certificated persons to pack a main parachute of a dual parachute pack that is to be used by that person for intentional jumping.

In the NPRM, the FAA proposed to allow persons to pack a main parachute under the supervision of a certificated parachute rigger or to allow a parachutist in command to pack a main parachute for tandem parachute operations. The FAA also proposed to add the word “next” to the provision that a person may pack a main parachute if that person intends to make the “next” parachute jump using that parachute.

Comments: One commenter supports the proposed rule language. Several commenters, including Skydive Delmarva, Inc. do not agree with proposed § 65.111. Skydive Delmarva, Inc. suggests adding a new paragraph which would allow persons authorized in writing by a certificated rigger to pack main parachutes without supervision. Further, Skydive Delmarva, Inc. requests that the FAA authorize organizations, other than the FAA, to issue parachute rigger certificates.

FAA response: Skydive Delmarva Inc.'s comment to allow a non-certificated person to receive permission in writing from a certificated rigger to pack a main parachute was not addressed in the NPRM. As a consequence, the comment goes beyond the scope of this rulemaking. This comment will not, therefore, be addressed in the final rule.

The FAA disagrees, for safety reasons, with Skydive Delmarva's request to allow persons authorized in writing by a certificated rigger to pack main parachutes without supervision. Further, in response to Skydive Delmarva's request to authorize organizations, other than the FAA, to issue parachute rigger certificates, the FAA recognizes and currently allows designated parachute rigger examiners (DPRE's), who are not FAA employees, to issue parachute rigger certificates. Therefore, § 65.111 is adopted in the final rule as proposed.

The FAA proposed to define the terms “approved parachute,” “automatic activation device,” “drop zone,” “fatal injury,” “foreign parachutist,” “freefall,” “main parachute,” “object,” “parachute drop,” “parachute jump,” “parachute operation,” “parachutist,” “parachutist in command,” “passenger parachutist,” “pilot chute,” “ram-air parachute,” “reserve parachute,” “serious injury,” “single-harness, dual-parachute system,” “supervision,” “tandem parachute operation,” and “tandem parachute system.”

The following is a list of proposed definitions, on which the FAA received comments, and the FAA response to those comments. Definitions that were included in the proposal, but not commented on are included in the final rule as proposed. However, definitions for “foreign parachutist,” “parachute drop,” “parachute operation,” and “parachutist,” have been changed for further clarification. The definitions for “fatal injury” and “serious injury” are deleted from the final rule.

Proposal: The FAA proposed to define an “automatic activation device” as a self-contained mechanical device attached to a parachute, other than a static line, which automatically initiates parachute deployment at a preset altitude, time, percentage of terminal velocity, or combination thereof if that parachute has not been manually activated.

Comments: Several commenters object to the proposed definition for the AAD. One of these commenters states that the definition should be deleted because AAD's “are not approved, reviewed, or certificated,” therefore, they should not be addressed in this rulemaking. Another commenter states that “AAD” should be defined as “a self-contained mechanical or electro-mechanical device,” because this definition accurately describes the type of equipment currently used in the parachute industry.

FAA response: The FAA disagrees that the definition for AAD should be deleted, but it agrees that the term “electro-mechanical device” should be added to the definition.

The FAA concluded that a definition for AAD should be included in this final rule because parachutists frequently use this equipment today. The fact that parachutists voluntarily rely on the AAD for their safety is a testimony to its value. The FAA's required use of an AAD on tandem parachute system reserve parachutes further attests to the added protection afforded by the use of this device.

The FAA agrees with the commenter who recommended that the term “electro-mechanical device” should be added to the definition of AAD. Upon receipt of this comment, the FAA reviewed the design and construction of AAD's. Three types of AADs exist; the first type is purely mechanical, or battery activated; the second type is a microprocessor, which has a mini computer; the third type of AAD, which is most frequently used today, combines the battery and computer processor to create an electro-mechanical AAD. Given that this AAD is the most frequently used, adding the phrase “electro-mechanical” to the definition provides the most accurate description of AAD's used today. Therefore, the FAA has added this phrase to the definition.

The FAA also amends the proposed definition for the term “AAD” in two other respects. First, the definition states that the AAD is attached to the interior of the reserve parachute container, instead of the parachute itself. Second, the definition is corrected to state that the AAD initiates deployment of the reserve parachute, which is a more accurate description of the AAD's operation that what was originally proposed.

Proposal: The FAA proposed to define the term “supervision” as the act of a certificated rigger personally observing the packing of a parachute by a noncertificated person to the extent necessary to ensure that it is being done properly.

Comments: Several commenters recommend revising the proposed definition of the term “supervision” to include that the certificated rigger is readily available in person for consultation. One commenter recommends that the definition be amended to state that a certificated rigger also “. . . takes responsibility for that packing.”

FAA response: The FAA agrees with the comment that a certificated rigger needs to be available during the packing process. The FAA has adopted a revised definition in the final rule to address this concern by changing “supervision” to “direct supervision.” Although the term “direct supervision” was not used in the NPRM, the FAA believes that adding the word “direct” clarifies the FAA's intent that a certificated rigger must be on the premises during the parachute packing process. The certificated rigger's presence ensures that he/she is readily available in person for consultation.

In addition, the FAA agrees with the commenters that direct supervision includes taking responsibility for the packing. Therefore, the phrase “and takes responsibility for that packing” has been added to the term “direct supervision” in the final rule.

Proposal: The FAA proposed to define the term “fatal injury” as any parachuting injury that results in death within 30 days from the date of injury.

FAA Response: Many comments were received on this proposed term because it is in conjunction with the proposed addition of § 105.27, Accident reporting requirements. Since the FAA has eliminated proposed § 105.27 in the final rule, this definition has been deleted.

Proposal: The FAA proposed to define this term as a parachutist who is neither a U.S. citizen nor a resident alien.

FAA Response: While no comments were received on this definition, the FAA has amended the proposed definition to clarify that a foreign parachutist is a parachutist who is neither a U.S. citizen nor a resident alien and is participating in parachute operations within the United States using parachute equipment not manufactured in the United States.

Proposal: The FAA proposed to define this term as a parachute operation that involves the descent of an object to the surface from an aircraft in flight when a parachute is used or intended to be used during all or part of that descent.

FAA Response: While no comments were received on this definition, the FAA amended the proposed definition to clarify that a parachute drop means the descent of an object from an aircraft in flight when a parachute is used or intended to be used during all or part of that descent.

Proposal: The FAA proposed to define this term as any activity that includes a parachute jump or a parachute drop. This activity involves, but is not limited to the following persons: Parachutist, tandem parachute operation, drop zone owner or operator, certificated parachute rigger, pilot, or appropriate FAA personnel.

FAA Response: While no comments were received on the proposed definition for parachute operation, the FAA determined that it should be further clarified. Therefore, the FAA has amended the proposed definition to define a parachute operation as any activity associated with, or performed in support of a parachute jump or a parachute drop. A parachute operation can involve, but is not limited to, the following persons: Parachutist, a parachutist in command and passenger in tandem parachute operations, jump master, certificated parachute rigger, or pilot.

Proposal: The FAA proposed to define this term as a person who boards an aircraft with the intent to exit the aircraft while in flight using a single-harness, dual parachute system to descend to the surface.

FAA Response: While no comments were received on this definition, the FAA has amended the proposed definition to clarify that a parachutist is a person who intends to exit an aircraft while in flight using a single-harness, dual parachute system to descend to the surface.

Proposal: The FAA proposed to add the term “parachutist in command” to address the instructor of a tandem parachute operation, which the FAA defined as the person responsible for the operation and safety of a tandem parachute operation before, during, and after a tandem parachute operation.

Comments: Several commenters state that the term “parachutist in command” should be changed to “tandem instructor,” which would more accurately reflect that person's function as a teacher, not simply the person in charge of the tandem parachute operation.

The USPA contents that the parachutist in the forward harness is more than a passenger because he or she could sabotage the safety of the operation by failing to follow proper procedures between exit and touch down.

FAA response: The FAA has given the commenters' recommendations serious consideration but cannot agree that “tandem instructor” would accurately reflect the role and responsibility that this person holds. Although it is true that the parachutist in command provides instruction, the amount of time spent instructing is greatly outweighed by the responsibilities held by the person in this role. The bulk of the parachutist-in-command's duties are centered on the safety of the tandem parachute operation. Safety, in this case, only begins with the passenger's instruction in proper procedures. In fact, the parachutist-in-command controls the safety of the operation from the moment the pair exit the aircraft to the time that touch down is safety accomplished.

The FAA has also given further consideration to the USPA's concern that the passenger can sabotage the tandem parachute operation. The FAA agrees with the USPA regarding the potential for a passenger to inadvertently act in a manner that would sabotage the safety of the operation, but such an event is highly unlikely. However, if such event occurred, the parachutist-in-command would be required to bring the operation back under control. The FAA believes that the term “parachutist-in-command” provides the broadest range of applicability and most accurately describes the responsibilities of the person who occupies the rear harness in a tandem parachute operation. Therefore, the term “parachutist-in-command” is adopted in the final rule.

Proposal: The FAA proposed to add the term “passenger parachutist” and define it as a person who boards an aircraft, acting as other than the parachutist in command of a tandem parachute operation, with the intent of exiting the aircraft while in flight using the forward harness of a dual harness tandem parachute system.

Comments: Several commenters suggest changing this term to “student tandem parachutist.” One commenter suggests changing the term to “tandem student.” Another commenter suggests that the term should be changed because the term “passenger” is used when referring to aircraft operations and is not appropriate when referring to tandem parachute operations since the person is a “student,” not a “passenger.”

FAA response: The FAA believes that the term “passenger parachutist” best describes the role of the person occupying the forward harness of a tandem parachute system. The term “passenger parachutist” is more inclusive than the terms “student tandem parachutist” or “tandem student.” Therefore, this term broadens the classification of persons participating in tandem parachute operations. In addition, this term clarifies that the parachutist-in-command would be solely responsible for regaining control of the parachute and the safety of the parachute operation, in the event of an emergency. It is highly unlikely that the parachutist in the forward would have the knowledge and experience to handle an emergency situation properly. For these reasons, the term “passenger parachutist” is most appropriate to describe the parachutist using the forward harness of a tandem parachute.

Proposal: The FAA proposed to define the term “serious injury” as any injury that requires hospitalization for more than 48 hours, commencing within 7 days from the date the injury was received; results in a fracture of any bone (except simple fractures of fingers, toes, or the nose); causes severe hemorrhages, or nerve, muscle, or tendon damage; or involves any internal organ.

FAA response: Many comments were received in response to this proposed term because of its relation to the proposed addition of § 105.27, Accident reporting requirements. Since the FAA has eliminated proposed § 105.27 in the final rule, this definition has been deleted.

Proposal: The FAA proposed to define the term “tandem parachute operation” as a parachute operation in which more than one person simultaneously uses the same tandem parachute system while descending from an aircraft in flight.

Comments: Several commenters suggest that this term be change to “tandem parachute jump,” or that “tandem parachute jump” be used in addition to “tandem parachute operation” to more accurately describe the action taking place, and to be consistent with current terminology.

FAA response: The FAA does not agree with these commenters. The proposed definition is intended to include more than just the actual jump, it also includes all aspects of the jump, from the time the jump aircraft departs until the last parachutist(s) descend to the surface. Therefore, the FAA adopts the definition as proposed.

Proposal: In the NPRM, the FAA proposed to make the following editorial changes to current § 105.13: (1) Replace the word “make” with the phrase “to conduct,” (2) replace the term “parachute jump” with the term “parachute operation,” (3) replace the word “made” with the word “conducted,” and (4) replace the word “jump” with the word “operation.”

Comments: Several comments were received on this proposal from the USPA, AOPA and others, requesting that the FAA incorporate language into the proposed § 105.5, which would hold the parachutists, not pilots, responsible for creating hazards to air traffic. These comments state that pilots of jump aircraft should be relieved from full responsibility for a parachutist exiting their aircraft. The comments' justification for their position is that parachutes used in these types of operations can be steered, therefore, the parachutist can maneuver out of the designated drop zone, possibly creating a hazard to air traffic.

FAA response: The proposed changes to this section were editorial in nature, not substantive. Comments that concern the responsibility of the pilot-in-command are beyond the scope of this rulemaking and therefore, are not addressed. This section is adopted as proposed.

Proposal: Currently, part 105 requires that the pilot of an aircraft used for conducting parachute operations establish radio communications with the nearest FAA air traffic control facility or FAA Flight Service Station at least 5 minutes before the jumping activity is to begin.

The FAA proposed to amend this section to require that the jump aircraft establish radio communications with the air traffic control facility having jurisdiction over the affected airspace. A pilot of a jump aircraft will no longer be required to establish radio communications with Flight Service Stations for the purpose of receiving traffic information.

The FAA also proposed amending this section to require pilots to notify ATC when the last parachutist or object leaves the aircraft. The current rule requires the pilot of the jump aircraft to notify ATC when the last parachutist reaches the ground.

In addition, the notice proposed to amend the lost communication procedures applicable to parachute operations. Currently, if communications systems become inoperative in flight after receipt of a required ATC authorization, the jumping activity from that flight may be continued. The notice proposed that if the required radio communications system is or becomes inoperative during any parachute operation in or into controlled airspace, the parachute operation msut be aborted.

Comments: Several commenters, including USPA, AOPA, and the Southwest Airlines Pilot's Association recommended changes to this section. The USPA suggests adding the phrase, “airspace of intended exit altitude(s)” to paragraph (a)(1)(ii). The USPA requests this change because parachute operations can pass through the airspace of several ATC facilities and sectors, depending on the altitude of the aircraft. According to the USPA, the proposal did not clarify which ATC facility would be the appropriate facility to contact. The change requested by the USPA would clarify that the appropriate facility to contact would be the one that has jurisdiction over the airspace and the altitude where the aircraft is located when the parachutist exists the aircraft.

Another commenter believes that the requirement to contact the ATC facility having jurisdiction over the airspace could be interpreted to require the pilot to maintain communications with two or more facilities during the jump operation. The commenter contends that if communications must be maintained with more than one ATC facility, a second radio would be required, imposing a financial burden of at least $1200 to $1500. This commenter believes that the current requirement is sufficient and should not be changed.

The USPA objects to the FAA proposal to require the parachutists on the flight to share responsibility to establish radio communications and to receive information about air traffic activity. The commenter recommends that the pilot in command have sole responsibility for radio communications.

Several commenters object to the proposed removal of the requirement to contact FAA Flight Service Stations (FSS). These commenters are concerned that Notices to Airman (NOTAM) regarding parachute operations, normally submitted to FSS's, will not be received or disseminated. The commenters believe that this creates a safety problem for non-radio equipped aircraft operating in airspace where parachute operations are being conducted.

Several commenters object to the proposal that requires that parachute operations must be aborted if radio communications equipment becomes inoperative. Currently, parachute operations may continue if the radio failure occurs after receipt of the ATC authorization. The USPA contends that the parachute operation should continue after receipt of an ATC authorization, regardless of the operational status of the radio communications system. According to the USPA, safety would not be compromised because the ATC has identified the aircraft on radio and has been advised of the jump operation.

FAA response: The FAA agrees with some of the comments received in response to the proposed changes.

The FAA agrees with the USPA's comment to include the phrase “airspace of the first intended exit altitude” in § 105.13(a)(1)(ii). Since parachute operations can require the use of more than one altitude, the FAA agrees with USPA's comment. The FAA believes that further clarification is necessary by adding that radio communications should be established over the affected airspace of “the first” intended exit altitude. Therefore, this clarifying language has been added to the phrase proposed by the USPA and is incorporated in the final rule. The adoption of this phrase clarifies which ATC facility to contact when parachute operations are being conducted.

The FAA also agrees that the rule as proposed could be interpreted to mean that the aircraft must have more than one radio to meet the communications requirement. The FAA's intent was not to require the pilot to contact more than one ATC facility, nor is it the intent of the FAA to increase the pilot's workload during a jump activity. It is common practice for ATC facilities to coordinate information regarding parachute jump operations. Pilots, therefore, typically are not required to contact more than one facility. By inserting the phrase, “airspace of first intended exit altitude,” in the rule language, the FAA believes that this confusion will be eliminated.

The FAA concurs with the USPA that the pilot in command should be solely responsible for establishing and maintaining radio communications and information about air traffic activity. The proposal was intended to ensure that known air traffic information is communicated to both the pilot and the parachutist. However, the configuration of most aircraft avionics, make it impractical for both pilot and parachutist to share the responsibility for establishing radio communications. Traffic information can be relayed within the aircraft from the pilot to the parachutists. Therefore, the FAA has deleted the requirement, that the parachutists also be responsible for establishing radio communications, from the final rule.

The FAA believes that commenters concerned about the FAA's failure to disseminate NOTAMs on parachute operations misunderstand the communications requirements. The current rule requires that pilots conducting parachute operations contact FSS's to receive information about know air traffic in the vicinity. This is solely a communication requirement; it does not address filing or disseminating NOTAM's. In addition, § 91.103 requires all pilots to become familiar with all available information concerning the flight that includes NOTAM's. Since pilots who operate non-radio equipped aircraft are required to check NOTAM's prior to a flight, this change will not impact safety. This rule does not change the current industry practice that pilots contact FSS's to file NOTAM information.

The FAA does not agree with the USPA recommendation to retain the current rule language that permits jump activities to continue if the aircraft loss its radio communications capability. The purpose of this proposal is to increase the safety of all aircraft in the vicinity of the parachute operation by ensuring that two-way radio communications have been established and maintained between the jump aircraft and the ATC facility that has jurisdction over the airspace. If, prior to receipt of an ATC authorization or during the parachute operation, the radio communications system becomes inoperative, traffic information or the status of the parachute operation cannot be exchanged, therefore, the parachute operation must be aborted. The proposed language is adopted in the final rule.

Proposal: The current rule lists information that must be submitted to the FAA when an individual or an organization requests an authorization for a parachute jump. This information includes the radio frequencies, if any, available in the aircraft. The FAA proposed that when required to submit information regarding parachute operations, the radio frequencies appropriate to the facilities used during the parachute operation would be specified, rather than the radio frequencies avialable in the aircraft.

Comments: Several commenters, including USPA recommend that the requirement to submit the radio frequencies appropriate to the ATC facility be replaced with the name of the ATC facility that has jurisdiction over the airspace where the jump will take place. The USPA contends that the pilot or fjum proponent may not know the radio frequencies that are used by ATC for the jump operation until coordination is completed with the proper ATC facility.

One commenter disagrees with the proposed requirement that a request for authorization should include the registration number for the jump aircraft. The commenter adds that this requirement is acceptable when filing a NOTAM. However, when a request is submitted to conduct a demonstration several days in advance of the jump operation, the person(s) participating in the demonstration may not know which aircraft is going to be used.

FAA response: The FAA agrees with the USPA's recommendation that the proponent of the parachute operation must submit the name of the ATC facility that has jurisdicaiton over the airspace where the jump will take place. In many cases, the pilot or jump proponent does not know which ATC radio frequencies are designated for the sector where the parachute operation will take place. By incorporating this change into the final rule, the pilot will know which ATC facility is the appropriate one to contact, and that facility may issue the appropriate frequency to the pilot.

In addition, the FAA understands that there may be some circumstances where the registration number of the jump aircraft is not known until the day of the hump. If this is the case, multiple registration numbers may be submitted along with an explanation to the ATC facility. Knowing the registration number of the aircraft identifies to the controllers the aircraft that will be involved in the jump operation. Having the aircraft identification number makes the intentions of the pilot contained in the authorization available to the controller, and therefore, reduces radio frequency congestion. The rule language remains as proposed.

The FAA has also added clarifying language to paragraph (a)(8), requiring persons requesting an authorization to conduct a parachute operation to provide the name of that air traffic control facility having jurisdiction of the airspace at the “first intended” exist altitude to be used in that parachute operation. The FAA believes this clarifying language is necessary to ensure that radio communication are established between the pilot of the hump aircraft and the appropriate air traffic control facility. Therefore, this phrase has been added to § 105.15(a)(8) in the final rule.

Proposal: Proposed § 105.19 would have added a requirement for parachutist(s) and objects descending from an aircraft to display a light which is visible for 3 statute miles in all directions.

Comments: Several commenters, including the USPA and the Southwest Airlines Pilot's Association, object to the requirement to display a light that is visible “in all directions.” The commenters believe it would require that a parachutist or an object be equipped with more than one light.

FAA response: The FAA has revisited this proposal and agrees with the commenters. Therefore, the FAA is rescinding the proposal and has deleted the phrase “in all directions” in the final rule. The common practice of mounting a light on the parachutist's helmet should make him or her visible to aircraft operating on the same horizontal plane. A helmet-mounted light may not be visible to aircraft flying at higher or lower altitudes than the parachutist, but the parachutist should not present a hazard to those aircraft. In addition, the requirement to have a light that is visible “in all directions” would require that a parachutist be equipped with two lights which would exceed the requirements for aircraft lights in part 91. Therefore, the phrase “in all directions” is not included in the final rule.

Proposal: In the NPRM, the FAA proposed to remove the 4-day requirement to apply for a certificate of authorization to make a parachute jump over or into congested areas or open air assemblies since that amount of time for processing certificates of authorization is no longer necessary.

Comments: Several commenters, including USPA, oppose deleting the 4-day reporting requirement, because in the commenters' opinion, it may take the FAA longer than 4 days to process a certificate of authorization. All of the commenters request that the regulation be amended to require processing of applications for certificates of authorization within 5 business days after submission, instead of leaving the processing time unspecified.

FAA response: The FAA does not agree with the commenters that removing the 4-day reporting requirement will increase the time it takes the FAA to process a certificate of authorization. The FAA and the parachute industry may use current technology (i.e., computers and fax capability) which makes it possible to process certificates of authorization in less than 4 days. Currently, the FAA uses this technology to issue certificates of authorization for other aviation events (i.e., air shows). Therefore, the FAA has determined that removing the 4-day reporting requirement will not cause additional processing delays and will actually expedite the process. The requirement is adopted in the final rule, as proposed.

Proposal: Currently, unless prior approval has been given by aircraft management, part 105 prohibits parachute operations over or onto any airport that does not have a functioning control tower operated by the United States. In the NPRM, the FAA proposed amending the regulation to require pilots of aircraft conducting parachute operations to contact the air traffic control tower having jurisdiction over the area where parachute operations are taking place, regardless of who is responsible for tower operations.

Comments: The commenters did not offer specific comments on the proposed change to this section. However, many commenters disagree with the current rule language which grants airport managers the authority to approve parachute operations over or onto the airports.

FAA response: The FAA did not propose an amendment to change the longstanding policy authorizing airport managers to grant approval for parachute operations over or onto their airport. The comments are therefore, outside the scope of the NPRM, and have not been considered.

Proposal: The FAA proposed to prohibit parachute operations in restricted or prohibited areas unless authorized by the controlling agency of the area concerned. The FAA also proposed to prohibit parachute operations in Class A, B, C, or D airspace without an air traffic control authorization. Further, the FAA proposed to prohibit parachute operations within Class E or G airspace unless the air traffic control facility having jurisdiction over the affected airspace is notified of the parachute operation no earlier than 24 hours before or not later than 1 hour before the parachute operation begins.

Comments: There were no substantive comments received on this section.

FAA response: Although there were no comments received on this section, the FAA determined that in paragraph (c) of this section, “air traffic control” should be replaced with “the FAA” to indicate that other FAA organizations, besides air traffic, may revoke the acceptance of the notification for any failure of the organization conducting the parachute operations to comply with FAA requirements. With the exception of this change, this section remains as proposed.

Proposal: Currently, there are no FAA requirements to report accidents involving parachutist. In the NPRM the FAA proposed a new section which would require the parachutist(s), the pilot of the aircraft, or the drop zone owner or operator to notify the FAA within 48 hours of any parachute operation resulting in a serious or fatal injury to the parachutist.

Comments: Numerous commenters, including USPA, AOPA, and Southwest Airlines Pilot's Association strongly oppose this proposed requirement, while one commenter supports it. Most of the commenter state that the pilot should not be responsible for reporting an accident because it would be very difficult for the pilot to know if a parachutist who jumped from his or her aircraft was injured from the fall. Several commenters state that only “serious” injuries, requiring a physician's attention, should be reported. In addition, several commenters also dispute the number of estimated parachute jumping accidents per year that was used as a basis for cost analysis and determining paperwork burden, versus the number of accidents that actually occur.

FAA response: Based on the comments received, the FAA has revisited its original proposal to determine whether or not current FAA policy, as well as industry practices, provide adequate information pertaining to parachute operation incidents.

The FAA believed that collection and review of information pertaining to parachute operation accidents could be used to assess the safety of parachute operations and assist in preventing future parachute accidents.

However, to be effective, this data collection requires a system, or infrastructure, to collect, store and evaluate the information, which the FAA does not have the resources to support at this time. In addition, this requirement imposes a significant paperwork burden on individuals conducting or participating in parachute operations. After considering the lack of available FAA resources and the paperwork burden that would be necessary to meet this requirement, the FAA has concluded that the infrastructure for this type of data collection is currently unavailable, and that the paperwork burden would be excessive.

Additionally, the FAA and the USPA have a close working relationship with regard to the safe conduct of parachute operations within the National Airspace System. When safety issues surface within either organization, an exchange of information is commonplace. We expect this relationship to continue, and believe that cooperation between the two organizations will provide the same, if not a better alternative than regulations at this time.

Therefore, § 105.27 and the definitions in § 105.3 associated with this section ( i.e., “fatal injury” and “serious injury”) are not included in the final rule. Although this section is not adopted in the final rule, the FAA will continue to monitor the safety of parachute operations and the possible need for accident reporting requirements for possible consideration in a future rulemaking action.

Proposal: Currently, the rule provides that only a certificated parachute rigger, or the person making the parachute jump with that parachute, may pack a main parachute. The FAA proposed that a non-certificated person also may pack a main parachute under the direct supervision of a certificated parachute rigger. The FAA also proposed that if installed, the automatic activation device (AAD) must be maintained in accordance with manufacturer instructions for that AAD.

Comments: Several commenters, including USPA, believe that the responsibility for the safety of parachute equipment should rest with the certificated rigger and the parachute jumper, not the pilot of the aircraft used for the jump, as current stated in § 105.43(a).

In addition, the USPA states that the certificated rigger should be on the premises during parachute packing, and thus available for personal consultation.

Several commenters support the current 120-day repack cycle requirement, which was also included in the proposal. Numerous commenters oppose the current 120-day repack cycle, and favor either a 180-day or a 6-month repack cycle.

Several commenters, including USPA, request the deletion of § 105.43(b)(3), which requires that if AAD's are installed, they must be maintained in accordance with the manufacturer's instructions. The USPA states that if this paragraph is retained in the final rule, there is no method of documentation available for a pilot to verify that the AAD is in compliance with the manufacturer's guidelines/instructions, and thus, in compliance with the rule. In addition, other commenters note that this piece of equipment is supplemental and does not require FAA certification, therefore, it should not be included in the regulation.

FAA response: The FAA agrees with the commenters who request that the certificated rigger should be held responsible for packing the parachute properly. However, this requirement is not new to the regulations. Certificated riggers have always been responsible for the proper rigging of a parachute, which is evident from the fact that the rigger is required to obtain a certificate. Section 65.129 of the regulations further requires that the certificated rigger ensure that parachutes are packed in accordance with the Administrator's and manufacturer's requirements. The FAA has adopted the revision of “supervision” to “direct supervision,” and has included the phrase “takes responsibility for that packing” in definition.

The FAA cannot agree entirely with those commenters who believe that the pilot should not be held responsible for the safety of the parachute equipment. The FAA wants to retain this longstanding requirement in the final rule for more than one reason. First and foremost, the pilot is the final checkpoint for equipment that a parachutist encounters before jumping from the aircraft. The pilot merely verifies that the jumper's equipment is properly inspected, which is not a burdensome task. The FAA believes that the pilot should bear this burden because the pilot has responsibility for the safety of the parachutist(s) while they are aboard the aircraft and the FAA believes that this responsibility should include ensuring that the parachutist(s) are using proper equipment.

The FAA agrees with the USPA's recommendation that a certificated rigger should be on the premises during parachute packing and available for personal consultation. The FAA also believes a certificated rigger should directly supervise the packing of the parachute. It is not sufficient, from a safety standpoint, to have a non-certificated person pack a parachute without a certificated rigger directly supervising the packing, and ensuring that it is done properly. Accordingly, § 105.43(a) is adopted as proposed.

With regard to the repack cycle, the 180-day and 6 month repack cycles were not part of the original proposal; therefore, they are outside the scope of this rulemaking. The requirement for a 120-day repack cycle is retained in the final rule.

The FAA disagrees with the commenters' request to delete § 105.43(b)(3), which requires that if AAD's are installed, they must be maintained in accordance with the manufacturer's instructions. Although AAD's are not subject to approval under a TSO or airworthiness certification, the FAA believes this requirement is necessary for safety considerations, even though AAD's are an optional piece of equipment, except in tandem operations. Therefore, this requirement is retained in the final rule.

The FAA also made a correction to the paragraph designation of this section. In the proposal, paragraph (b)(3) was incorrectly labeled; it has been correctly designated as paragraph (c) in the final rule.

Proposal: This proposed section provided for tandem parachute operations, and incorporated the conditions and limitations, with some modification, set forth in the grants of exemption issued to experimental tandem parachute operators. These conditions and limitations include instructor experience requirements, briefings for passenger parachutists, equipment inspections, and packing requirements.

In addition, the FAA proposed that a certificated parachute rigger supervise persons packing parachutes who are not certificated by the FAA, unless the person packing the parachute is a parachutist in command.

Comments: Several commenters, including USPA, recommend that manufacturer's directives for tandem parachute systems be made mandatory. The commenters also request that the number of freefall jumps to qualify as a tandem jump instructor be changed from 300 of 500 freefall jumps with a ram air parachute to 500 freefall jumps, because currently, only ram air parachutes are used. According to the commenters, this change would reflect the recommendation by USPA and the manufacturers for tandem jump instructor qualifications.

FAA response: The USPA's recommendation that the manufacturer's directives for tandem parachute systems should be mandatory is outside the scope of this rulemaking, and therefore, cannot be addressed at this time.

The FAA has decided to eliminate the requirement that 300 of the 500 freefall jumps must be made using a ram air parachute. The commenters correctly point out that round have long become obsolete. Today, almost all jumps are made with ram air parachutes. The FAA has changed this requirement to 500 jumps using a ram-air parachute in the final rule.

Proposal: The current rule requires that no person may make a parachute jump using a static line unless an assist device is used to aid the pilot chute in performing its function, or if no pilot chute is used, to aid in the direct deployment of the main parachute canopy. The Notice proposed to remove the requirement that assist devices must be used with ram-air parachutes.

Comments: Several commenters, including USPA, submitted comments on this proposed section. The commenters ask that the term “direct-deployed” be changed to “direct-bag deployed” and that the term “ram-air parachutes” be replaced with the term “ram-air canopies,” because according to the commenters, these terms are used currently in the parachute industry.

FAA response: The FAA does not agree with these commenters. The use of the terms “ram-air canopies” and “ram-air parachutes” are nearly synonymous in the parachute industry, as are the terms “direct-bag deployed” and “direct deployed.” Therefore, these terms are adopted as proposed.

Proposal: This new section will be added to address equipment and packing requirements for foreign parachutists. Only single-harness, dual-parachute systems which contain a non-technical standard order (TSO) reserve parachute or non-TSO'd harness and container would be allowed to be used in the United States by the owner or agent of that equipment. The parachute system used by the foreign parachutist must also meet the civil aviation authority requirements of the foreign parachutist's country, and must be packed by the foreign parachutist making the next parachute jump with that parachute, or a U.S. certificate parachute rigger.

Comments: Several commenters, including the USPA, believe that this section needs clarification. For example, the commenters suggest that the FAA should clarify that when a foreign jumper brings a parachute system into the United States, the foreign parachute system should be subject to the U.S. repack cycle (120 days).

FAA response: The FAA does not agree with the commenter's recommendations that the foreign parachute system should be subject to the U.S. repack cycle (120 days). The FAA has already determined that foreign parachute systems must meet the requirements of their country or its civil aviation authority. This section is incorporated into the final rule as proposed, with one exception. In the proposal, the two subparagraphs in paragraph (a)(4) were incorrectly labeled (a) and (b); they have been correctly designated as (i) and (ii), respectively, in the final rule.

Proposal: Currently, § 119.1(e)(6) provides an exception for nonstop flights conducted within a 25 statute mile radius of the airport of takeoff carrying persons for the purpose of intentional parachute jumps. The FAA proposed to amend this section to add the word “objects” in addition to “persons” when a flight is conducted for intentional parachute operations.

Comments: Several commenters, including USPA, submitted comments on this proposed section. Some commenters ask for the elimination of this section, as they claim it is unnecessary, given the nature of parachute operations today. Several other commenters, including USPA, suggest that the 25-statue mile limit be increased to a 100-statute mile limit of the departure airport.

FAA response: The FAA does not agree with the commenters' requested changes. Since the request to increase the statute mile limit from 25 to 100 statute miles from the airport of departure, is outside the scope of the Notice, it will not be considered in this action. Therefore, the language originally proposed in the Notice is retained in the final rule.

At the NPRM stage of this final rule, the FAA proposed a requirement for accident reporting. Because this requirement involved the voluntary submission of information from the public on accidents involving parachute operations, the FAA prepared an estimate of the paperwork burden that would be required of the public and submitted it to OMB for approval. However, after reviewing the comments received from the public on the accident reporting proposal in the NPRM, the FAA has decided not to include this requirement in the final rule. Therefore, in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the agency has determined that there are no longer information requirements associated with this final rule.

The FAA has reviewed corresponding International Civil Aviation Organization international standards and recommended practices and Joint Aviation Authorities requirements and has identified no differences in these proposed amendments and the foreign regulations.

Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal Agency to propose or adopt a regulation only if the agency makes a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards. Where appropriate, agencies are directed to use those international standards as the basis of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules. This requirement applies only to rules that include a Federal mandate on State, local, or tribal governments, or the private sector, likely to result in a total expenditure of $100 million or more in any one year (adjusted for inflation).

In conducting these analyses, the FAA has determined this rule: (1) Has benefits which do justify its costs, is not a “significant regulatory action” as defined in the Executive Order, and is not “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant impact on a substantial number of small entities; (3) will not impose restraints on international trade; and (4) does not impose an unfunded mandate on State, local, or tribal governments, or on the private sector. The FAA has placed these analyses in the docket and summarized them below.

This final rule will amend the regulations that govern parachute operations. Amendments to the regulations reflect changes in the requirements applicable to radio communications, parachute packing, tandem parachute operations, and foreign parachutists. Through this rule, the FAA intends to enhance the safety of parachute operations in the National Airspace System (NAS).

The benefits of the final rule are: (1) It should reduce the risk of a midair collision between aircraft and persons engaged in parachute operations, and reduce the risk of aircraft coming in close proximity to the parachutists in the vicinity of an airport or within controlled airspace; (2) it will revise some sections of the rule for better understanding; and (3) it will permit certain operations that currently are only allowed through exemptions granted by the FAA.

The amendments to part 105 will impose negligible additional cost, if any, on parachutists, pilots of aircraft used in parachute operations, certificated parachute riggers, and drop zone operators. Major aspects of this rule such as the requirements for tandem parachute operations and for parachute jumps by foreign parachutists already are being met under exemptions granted by the FAA. Therefore, this rulemaking action will not impose additional business expenses on drop zone operators, parachute clubs, or foreign parachutists. Costs imposed on the FAA are negligible, since the agency will not be required to provide additional oversight of parachute operations under the revision of parts 65, 91, 105, and 119.

In view of the negligible additional cost of compliance to the final rule, compared with the improvements in operating procedures that enhance the safety of parachute operations, the FAA has determined that the final rule is cost-justified.

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to the regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 Act provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA conducted the required review of this final rule and determined that it will not have a significant economic impact on a substantial number of small entities. The small entities affected by this final rule consist of parachutists, pilots of aircraft used in parachute operations, certificated riggers, and drop zone operators. The final rule will impose negligible additional cost, if any, on the entities. Major aspects of this rulemaking such as permitting tandem parachute operations will not impose additional business expenses for compliance on drop zone operators or parachute clubs because these entities currently adhere to the requirements of the rule through grants of exemptions issued by the FAA under part 105. Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FAA certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activity that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. In addition, consistent with the Administrator's belief in the general superiority and desirability of free trade, it is the policy of the Administration to remove or diminish, to the extent feasible, barriers to international trade, including both barriers affecting the export of American goods and services to foreign countries and barriers affecting the import of foreign goods and services into the United States.

The FAA has determined that the rule will promote parachuting by foreign parachutists in the United States. The final rule will permit foreign parachutists to jump in the United States using parachutes that are packed in their country of origin and thereby encourage foreign countries to grant permission for U.S. skydivers to jump in those countries using parachutes packed in the United States.

The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. L. 104-4 on March 22, 1995, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments.

Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. It has determined that this action will not have a substantial direct effect on the States, or the relationship betwen the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the FAA has detemined that this final rule does not have federalism implications.

FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j), this rulemaking action qualifies for a categorical exclusion.

The energy impact of the final rule has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined that the final rule is not a major regulatory action under the provisions of the EPCA.

The following distribution table is provided to illustrates how the current regulation would relate to the revised part 105, and the derivation table identifies how the revised part 105 would relate to the current rule.

The FAA has developed RNAV (GPS) RWY 32 ORIGINAL SIAP to serve Chillicothe Municipal Airport, Chillicothe, MO. The amendment to Class E airspace at Chillicothe, MO, will provide additional controlled airspace at and above 700 feet AGL, in order to contain the new SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-ACE-4.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has developed RNAV (GPS) RWY 21 ORIGINAL SIAP to serve Cabool Memorial Airport, Cabool, MO. The amendment to Class E airspace at Cabool, MO, will provide additional controlled airspace at and above 700 feet AGL in order to contain the new SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-ACE-3.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA published this direct final rule with a request for comments in the Federal Register on February 28, 2001 (66 FR 12731). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on May 17, 2001. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA has modified the VOR RWY 36 SIAP serving Johnson County Executive Airport, Olathe, KS. The amendment to Class E airspace at Olathe, KS, will provide additional controlled airspace upward from the surface and at and above 700 feet AGL in order to contain the modified SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from the surface of the earth are published in paragraph 6004 of FAA Order 7400.9H dated September 1, 2000. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-ACT-5.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435, 90 Stat. 1390, and amended by Pub. L. 106-553, 114 Stat. 2762 (“HSR Act”), requires all persons contemplating certain mergers or acquisitions to file notification with the Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice (“Assistant Attorney General”). The HSR Act further provides that such persons wait a designated period of time before consummating such transactions.

Congress empowered the Commission, with the concurrence of the Assistant Attorney General, to require “that the notification * * * be in such form and contain such documentary material and information * * * as is necessary and appropriate” to enable the agencies “to determine whether such acquisitions may, if consummated, violate the antitrust laws.” Congress similarly granted rulemaking authority to, inter alia, “prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.” 15 U.S.C.18a(d). Pursuant to this section, the Commission, with the concurrence of the Assistant Attorney General, promulgated the Antitrust Improvements Act Notification and Report Form for Certain Mergers and Acquisitions on July 31, 1978, with an effective date of September 5, 1978, 43 FR 33450 (July 31, 1978), and has since amended or revised the rules and Form on fifteen occasions. The Commission, with the concurrence of the Assistant Attorney General, is promulgating these amendments to the Form and the Instructions relating to Items 3, 5, 6, 7, and 8 as well as to Sections 801.1(j), 802.2(g), and 803.2 of the Rules as indicated herein.

Completion of the Form provides the Commission and the Assistant Attorney General with information and documentary material necessary to conduct an initial review of mergers, acquisitions, and other similar transactions “to determine whether such acquisitions may, if consummated, violate the antitrust laws.” 15 U.S.C. 18a(d). The Form is not designed to elicit all potentially relevant information relating to a transaction. Instead, the information requested enables the Commission and the Assistant Attorney General to determine whether the waiting period for a proposed acquisition should be allowed to expire; whether a request by one or both of the filing persons for early termination of the waiting period should be granted; or whether the Commission or the Assistant Attorney General should issue a request for additional information and documentary materials pursuant to section 7A(e) of the HSR Act and 16 CFR 803.20.

The Form and the Instructions currently require that filing persons report revenue data contained in the 1992 Economic Census and the “1992 Numerical List of Manufactured and Mineral Products.” The Bureau of the Census has recently published its 1997 versions of the Economic Census and the “Numerical List of Manufactured and Mineral Products.” In these reports, the data is compiled using the NAICS which has replaced the SIC as the industrial classification for the United States. As a result, the Form, the Instructions, and several rules will be amended to replace references to the SIC codes with references to the NAICS codes, and references to a 1992 base year to a 1997 base year.

In 1992, OMB established the Economic Classification Policy Committee (ECPC). 1 Among other things, OMB asked the ECPC to evaluate the SIC to determine whether it should be revised or it should be replaced with a new industry classification system for the United States. The ECPC concluded that the SIC should be replaced because it did not adequately describe the economy of the United States. Specifically, the ECPC noted that the SIC had failed to address two significant economic trends which had transformed the economy over the last 20 years: the emergence of service-producing industries and the rapid development of technology-based industries.

After conducting an extensive examination of the economy, the ECPC determined that a new industrial classification system would best describe the economy if it were based on a production-oriented, or supply-based, conceptual framework that grouped together businesses using identical or similar production processes. The ECPC also noted that a single conceptual framework would add internal consistency to the new classification system and would ensure that the system could adapt to future economic trends.

Acting in concert with similar committees in Mexico and Canada, the ECPC developed the NAICS to replace the SIC. 2 The NAICS divides the economy into 20 sectors  3 and identifies nine new service industries sectors and 358 new national industries. The NAICS employs a 6-digit coding system in which the first two digits designate the sector, the third digit designates the subsector, the fourth digit designates the industry group, the fifth digit represents the NAICS industry, and the sixth digit designates individual national industries (either Canadian, Mexican, or United States). A 6-digit NAICS industry code is comparable to a 4-digit SIC industry code. A 7-digit NAICS product class code and a 10-digit NAICS product code are comparable to a 5-digit SIC product class code and a 7-digit SIC product code, respectively. 4 A review of NAICS industry codes is slated for every five years and is expected to keep the NAICS current as economic sectors evolve.

In April, 1997, OMB issued its decision to require all Federal statistical agencies that collect or publish data by industry to adopt the NAICS as the industrial classification system for the United States, 62 FR 17287-17337 (April 9, 1997). However, OMB specifically noted that it was not requiring any non-statistical agencies, such as the Commission, to use the NAICS because the non-statistical agencies played no role in the development of the NAICS. Instead, OMB noted that non-statistical agencies should utilize the NAICS only after the “head of the agency administering that program has . . . determined that the use of such industry definitions is appropriate to the implementation of the program's objectives.” Id .

The Commission has determined that requiring filing persons to report revenue data using the NAICS will further the policy objectives of the HSR notification program because the NAICS has several characteristics that will contribute to a more meaningful antitrust analysis. First, the NAICS was designed to describe the United States economy more accurately than the SIC. With its nine new service industry sectors and 358 new industries, the NAICS should provide more precise comparisons for product markets. The review of the NAICS every five years should also provide more accurate comparisons in a dynamic economy.

Second, the Commission has traditionally relied upon the most current economic data to analyze the potential anticompetitive effects of proposed transactions. 5 The “1997 Economic Census” and the “1997 Numerical List of Manufactured and Mineral Products” published by Bureau of the Census contain such data and use the NAICS.

Third, the NAICS is erected on a production-oriented, or supply-based, conceptual framework to ensure the internal consistency of its industry classifications. Businesses that use identical or similar production processes are grouped together. This organizational concept will be useful to the Commission and the Assistant Attorney General when they evaluate entry and industry overlap issues as part of their antitrust analysis of proposed transactions.

Incorporating the NAICS into the Form and the Instructions will ensure that filing persons provide revenues in a format that can be compared to the most recent and complete economic data published by the Bureau of the Census. The amended Form and Instructions will require the 6-digit NAICS industry code where the Form and Instructions currently require the 4-digit SIC industry code. Filing persons should be aware, however, that certain NAICS industry codes only contain 5-digits. In those instances, the filing person should add a zero (0) to the end of the five-digit code when completing the Form. Seven-digit NAICS product class codes and the 10-digit NAICS product codes should be used where the Form and Instructions currently require the 5-digit SIC class codes and the 7-digit SIC product codes. 6

We reiterate that filing persons must continue to use the SIC codes through June 30, 2001, and that all parties to a transaction must use the same classification system. For transactions identified as Section 801.30 transactions, where the acquiring person files before July 1, 2001 with the expectation that the acquired person will file on or after July 1, 2001, the Premerger Notification Office recommends that the acquiring person use the NAICS industry and product codes to ensure the efficient handling of the filing.

Items 5, 7, and 8 of the Form and Instructions will require that revenue data be provided using the NAICS. References to the SIC codes in Section 801.1(j) and Section 802.2(g) will be replaced with NAICS references. References to the “1992 base year” will replaced with “1997 base year” throughout the Form and Instructions. Filing persons should refer to the “1997 Numerical List of Manufactured and Mineral Products” (EC97M31R-NL) published by the Bureau of the Census to locate product class codes and product codes.

As noted above, several other minor changes to the Form and the Instructions will be made. Most of these changes either clarify the requirements of the Form and Instructions or correct technical errors in earlier versions. In addition, the Insurance Appendix will be deleted and filing persons should report revenues from all insurance activities in Item 5 of the Form. Finally, Section 803.2 will be amended to reflect the deletion of the Insurance Appendix.

In Section 801.1(j), the definition of “Engaged in manufacturing,” will be amended by replacing “products within industries 2000-3999 as coded in the Standard Industrial Classification Manual (1972 Edition)” with “products within industries in Sectors 31-33 as coded by the North American Industrial Classification System (1997 Edition).” This amendment is needed to update the definition to refer to the applicable NAICS sector rather than the SIC industry code.

In Section 802.2(g), the reference to the SIC in the parenthetical will be amended by replacing “(activities within SIC Major Groups 01 and 02)” with “(activities within NAICS sector 11).” This amendment is necessary to update the definition to refer to the applicable NAICS sector rather than the SIC industry codes. Section 802.2(g) is also the subject of a substantive proposed rule change set forth at 66 FR 8723-8729 (February 1, 2001), but that change will not affect the parenthetical referenced here. The parenthetical reference to “(activities within SIC Major Groups 01 and 02)” will be amended as of July 1, 2001, along with the other NAICS changes.

The last sentence of the Instruction to Item 3(a) will be corrected by inserting the word “involved” between the words “persons” and “in.” In the Instruction to Item 3(c), the reference to “items 3(c)(i)-3(c)(viii)” will be corrected to read “items 3(c)(i)-3(c)(vi).”

The last paragraph of the general instruction to Items 5(a) through 5(c) will be revised to clarify that persons filing notification should report revenues derived by all entities included within the person at the time the Notification and Report Form is prepared for each applicable subpart of Item 5. Filing persons have always been required to provide this information for all entities they controlled at the time of filing. The specific reference to the base year in the instruction was added because the Commission wanted to make clear that information for the base year should be included for those entities that were acquired after the base year. Since the instruction has been the subject of questions on several occasions, the revised language should eliminate any confusion about this requirement.

Item 5(a) will require that the filing person provide 1997 base year revenue data for each 6-digit NAICS industry code(s) in which it derived revenues. Item 5(b)(i) will require that a filing person engaged in manufacturing provide 1997 base year revenue data for each 10-digit NAICS product code(s) in which it derived any revenues. Item 5(c) will require that a filing person engaged in non-manufacturing activities provide 6-digit NAICS industry revenue data for the most recent year.

Item 5(b)(ii) will require that the filing person identify each manufactured product it has added or deleted since 1997 by 10-digit NAICS-based product code(s). The filing person must also give the year in which the product was added or deleted, and must provide the total dollar revenue attributable to each product added for the most recent year by 10-digit NAICS-based product code.

The second paragraph of the Instruction to Item 5(b)(ii) will be revised to clarify that while products added by reason of acquisition of an entity are not included in this item, products added by reason of an acquisition of assets constituting less than an entity should be reported. The paragraph will also be revised to clarify that the same is true of products deleted by disposition of assets. The reference to dispositions of voting securities will be removed in order to correct a technical error in the original instructions. (If a product has been deleted by a disposition of voting securities, then that issuer is no longer within the person filing notification, and no Item 5 information is required for that issuer.)

Item 5(b)(iii) will require that the filing person engaged in manufacturing provide revenue data for the most recent year for each 7-digit NAICS-based class code(s) in which it derived revenues.

The paragraph following the note to Item 5(c) in the Instructions references the Insurance Appendix, which was designed to elicit information relating to insurance activities, broken down by type of insurance. Over time, the Commission has determined that requiring a separate listing for insurance overlaps has not been particularly useful. Consequently, all insurance revenues, including those revenues previously classified under 2-digit SIC major group 63, will now be required to be reported in Item 5. The Insurance Appendix will be deleted and this reference in the Instructions will no longer be needed.

Item 5(d)(iv) of the Form and the Instructions will require that the filing person identify the source of dollar revenues by 6-digit NAICS industry code(s) for a joint venture or other corporation. If the joint venture or other corporation is engaged in manufacturing, the filing person will be required to specify each 7-digit NAICS-based product class code in which it will derive revenues.

In Item 5(d) of the Form, the number “(1)” will be changed to “( i )” to correct a typographical error.

In the heading of Item 6(b) on the Form, the word “or” will be corrected to “of,” so that it reads, “Shareholders of Person Filing Notification.”

Item 7, which currently requires geographic market information for any 4-digit SIC code in which more than one party to the transaction derives revenues, will require this geographic market information by 6-digit NAICS industry code(s).

Items 7(c)(i-vi) of the Instructions, which require the submission of geographic market information by state and, in some instances, by county, city or town, will be amended by adding the references to the NAICS sectors and subsectors rather than the SIC major groups. The reference to the NAICS sectors and subsectors were carefully compared with the SIC to ensure that the assignment of NAICS codes to subdivisions (i-vi) of Item 7(c) will correspond to the SIC codes currently required. For example, the Instructions to Items 7(c)(v) and 7(c)(vi) will be revised to accommodate a change in classification under the NAICS of insurance agencies/brokerages and insurance carriers. Insurance agencies and brokerages have always been required to list the states in which their establishments are located, while insurance carriers are required to list the states in which they are licensed to write insurance. Under the SIC, agencies and brokerages were reported under Major Group 64, while insurance carriers were reported under Major Group 63. Both types of activities are classified under Sector 52 in the NAICS, but insurance carriers and insurance agencies/brokerages are classified under NAICS Industry Group 5241 and 5242, respectively. Thus, the Instruction to Item 7(c)(v) will apply to insurance agencies/brokers (NAICS Industry Group 5242) and the Instruction to Item 7(c)(vi) will apply to insurance carriers (NAICS Industry Group 5241).

Item 8 requires that the acquiring person report certain recent acquisitions of assets and voting securities, where the assets or voting securities that were previously acquired derived revenues in the same 4-digit SIC code as reported in Item 7 in the instant acquisition. This item will ask for this information by 6-digit NAICS industry code(s).

The instruction to Item 8 will be revised to clarify that information should be provided as to any previous acquisitions where such acquisitions were of a controlling interest in an issuer with sales or assets satisfying the threshold in the instruction. The previous language, requiring the listing of acquisitions of “more than 50 percent” of the voting securities of an entity, did not technically encompass an acquisition of exactly 50 percent, which also would constitute a controlling interest. The instruction for asset acquisitions will also be revised to require the listing of any previous acquisition of assets valued at or above the statutory size-of-transaction test at the time of their acquisition, rather than any acquisition of more than 50 percent of the assets of an entity. Requiring the listing of asset acquisitions of a potentially reportable size at the time of their acquisition, and therefore deemed by Congress to warrant antitrust scrutiny, should yield more meaningful information than the listing of acquisitions of over 50 percent of the assets of an entity with assets of $10 million or more, which could be extremely small and of little antitrust significance. In addition, the requirement to provide annual net sales and total assets of the acquired entity in the year prior to the acquisition has been eliminated. Numerous informal comments have been received over the years indicating that this information is often difficult to obtain, particularly for prior acquisitions of assets. The agencies have determined that the burden placed on persons filing notification outweighs the usefulness of the information in analyzing the antitrust implications of the transaction. Accordingly, Items 8(e) and 8(f) will be deleted and Item 8(g) will be redesignated as Item 8(e).

As noted in Item 5, this appendix will be deleted in its entirety. Section 803.2 has been amended to reflect the deletion.

The requirement to publish a notice of proposed rulemaking and afford an opportunity for public comment under the Administrative Procedure Act does not apply when an agency for good cause finds that such procedure would be “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. 553(b)(A).

The Commission believes that a notice of proposed rulemaking with public comment is unnecessary here. The NAICS has already become the U.S. standard as an industrial classification system for statistical agencies, replacing the SIC. The NAICS is used by all federal statistical agencies, and has already been widely adopted by state agencies, trade associations, private businesses, and other organizations. Moreover, as noted earlier, the use of the NAICS will improve both the accuracy and consistency of data submitted by filing parties and the evaluation of entry and industry overlap issues as part of the Commission's premerger antitrust analysis. In addition, these revisions will not alter or otherwise affect the substantive rights of the filing parties or the standards by which the Commission is required to conduct such premerger review. Finally, the publication of this interim rule is being made to provide the public with ample opportunity to implement the change to the NAICS from the SIC.

Nonetheless, the Commission is soliciting comment regarding the July 1, 2001 effective date of these amendments to ascertain whether it provides sufficient time for filing persons to comply.

After the comment period, the Commission will publish a notice and final rule in the Federal Register . The notice will discuss comments received and will indicate the action taken by the Commission in light of such comments.

The information required by the amended Form is substantially the same as the information elicited on the current Form. The only difference is that filing persons will be required to report revenue data using the NAICS instead of the SIC in Items 5, 7, and 8. The change in base year simply requires that filing persons use data from the “1997 Economic Census” rather than data from the “1992 Economic Census.” The ministerial changes clarify or simplify existing practices.

The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that the agency conduct an initial and final regulatory analysis of the anticipated economic impact of the proposed amendments on small businesses, except where the agency head certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605. Because of the size of the transactions necessary to invoke a Hart-Scott-Rodino filing, 7 the premerger notification rules rarely, if ever, affect small businesses. The recent amendments to section 7A of the Clayton Act and the Commission's implementing rule amendments were intended to reduce the burden of the premerger notification program by exempting all transactions valued at $50 million or less.

Furthermore, most federal statistical agencies have adopted the NAICS since 1997. Accordingly, many companies that currently file HSR notifications have submitted economic information to the Bureau of the Census using the NAICS codes since 1997. For these filing persons, reporting base year revenue data classified under the NAICS should present little difficulty. For persons that do not have base year revenue data coded under the NAICS, the delayed effective date of the amendments to the Form should provide sufficient time to convert their SIC data to the NAICS format with minimal burden. Finally, potential filers have always been required to provide base year data from the most recent Economic Census since the inception of the Form in 1978.

In light of the foregoing, the Commission certifies that the amendments to the Form will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. Thus, neither an initial nor a final regulatory flexibility analysis of this revision is required. 5 U.S.C. 605. This document serves as the required notice of this certification to the Small Business Administration.

The Commission's revisions to the Form do not “substantive[ly] or material[ly] modify” the existing terms of the currently approved collection of information (OMB Control Number 3084-0005) to necessitate OMB's further review and approval. See 44 U.S.C. 3507(h)(3); 5 CFR 1320.5(g).

The following sponsors have requested that FDA withdraw approval of the NADAs listed below because the products are no longer manufactured or marketed:

Following the withdrawal of approval of these NADAs, Golden Sun Feeds, Inc., is no longer the sponsor of any approved applications. Therefore, 21 CFR 510.600(c) is amended to remove entries for the sponsor.

Steris Laboratories currently has another approved application for dexamethasone injection (NADA 104-606). Therefore, the regulation is not amended to reflect the withdrawal of approval of NADA 110-349 (dexamethasone injection).

Steris Laboratories NADA 44-585 oxytocin injection is not codified under 21 CFR 522.1680 oxytocin injection. Also, Steris Laboratories NADA 45-848 phenylbutazone injection is not codified under 21 CFR 522.1720 phenylbutazone injection. Therefore, amendments of the cited regulations are not required.

As provided below, the animal drug regulations are amended to reflect the withdrawal of approvals.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

4. Section 520.2520a Trichlorfon oral is removed.

5. The authority citation for 21 CFR part 522 continues to read as follows:

6. Section 522.1258 Lidocaine injection with epinephrine is removed.

7. Section 522.1704 Sodium pentobarbital injection is amended by removing and reserving paragraph (b).

8. Section 522.1884 Prednisolone sodium succinate injection is amended by removing the second sentence of paragraph (c) and by removing paragraph (d)(2)(iv).

9. The authority citation for 21 CFR part 558 continues to read as follows:

10. Section 558.274 Hygromycin B is amended as follows:

a. In paragraph (a)(2) by removing “016968 and”;

b. By removing and reserving paragraph (a)(3);

c. In paragraph (a)(4) by removing “016968,”;

d. In the table in paragraph (c)(1) in the fifth column of the first entry in items (i) and (ii) by removing “016968,”.

11. Section 558.625 Tylosin is amended by removing and reserving paragraph (b)(17).

12. Section 558.630 Tylosin and sulfamethazine is amended by removing and reserving paragraph (b)(4), and in paragraph (b)(10) by removing “021780,”.

Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed a supplement to NADA 118-980 that provides for the use of Monteban® (36, 45, 54, 72, or 90 grams per pound narasin activity), a Type A medicated article. The supplement provides for establishing a tolerance for residues of narasin in the abdominal fat of chickens. The supplement is approved as of April 11, 2001, and 21 CFR 556.428 is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In addition, FDA is taking the opportunity to codify the acceptable daily intake for total residues of narasin which was previously established.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

1. The authority citation for 21 CFR part 556 continues to read as follows:

(a) Acceptable daily intake (ADI) . The ADI for total residues of narasin is 5 micrograms per kilogram of body weight per day.

(b) Tolerances —(1) Chickens ( abdominal fat ). The tolerance for parent narasin (the marker residue) is 480 parts per billion.

(2) [Reserved]

On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 37672, 54624) revising regulations in 27 CFR part 4. These regulations allow the establishment of definite American viticultural areas (AVAs). The regulations also allow the name of an approved viticultural area to be used as an appellation of origin in the labeling and advertising of wine.

On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 56692), which added a new part 9 to 27 CFR, providing for the listing of approved American viticultural areas. Section 4.25a(e)(1), Title 27, Code of Federal Regulations, defines an American viticultural area as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been delineated in subpart C of part 9. Section 4.25a(e)(2) outlines the procedure for proposing an American viticultural area. Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include:

(a) Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

(b) Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

(c) Evidence relating to the geographical features (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

(d) A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

(e) A copy of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

ATF has received a petition from Mr. Ronald W. McManis, proposing to establish a new viticultural area in southern San Joaquin County, California, to be known as “River Junction.” The viticultural area is located at the western edge of San Joaquin Valley (also known as the Central Valley) and the southernmost edge of the Sacramento-San Joaquin River Delta. It contains approximately 1,300 contiguous acres, of which 740 are currently planted to vineyards. Present agricultural use of the area is primarily 700 acres of Chardonnay grapes. An additional 40 acres are planted to Cabernet Sauvignon grapes.

In response to this petition, ATF published a notice of proposed rulemaking, Notice No. 901, in the Federal Register on August 10, 2000 [65 FR 48653], proposing the establishment of the River Junction viticultural area. The notice requested comments from interested persons by October 10, 2000.

The origin of the name, “River Junction,” refers to the junction of the Stanislaus River with the San Joaquin River. Mr. McManis states, “The name is in prominent use within the AVA, undoubtedly because of the significant prehistoric, historic, and ongoing influence of the rivers' confluence on the immediate area.” The petitioner owns a vineyard in the AVA. The property, purchased in the early 1990's, was previously known as “River Junction Vineyards.” A vineyard block map of his ranch shows the historical ownership of the vineyards by the designation “R” for “River Junction Vineyards.” These vineyards are located within the AVA.

The name “River Junction” is also used for River Junction Reclamation District No. 2064, a State of California Special District dating from at least 1925. River Junction Reclamation District includes Bret Harte Gardens subdivision, filed October 11, 1922. Since this subdivision assumes reclamation within the District, it seems likely that “River Junction,” as a District name, dates at least to 1922. The name is also used for River Junction Farms subdivision no. 2 within the River Junction Reclamation District.

The viticultural area is bounded on the north by an old river terrace shelf delineated by Division Road; on the northwest by a drainage boundary enhanced and delineated by Airport Way; on the west and south by the San Joaquin River; and on the south and east by the Stanislaus River.

Following the Federal Swampland Act of 1850, reclamation of wetlands was begun. A portion of the River Junction AVA was designated as a State Reclamation District, River Junction Reclamation District No. 2064. Ronald McManus indicated that this portion of the AVA “. . . occupies the southern one-third of the California State Reclamation District No. 2064 and is the same as River Junction Farms Subdivision No. 2, except that it does not include 195 acres at the northeast corner of that subdivision.”

As indicated, the petitioner owns a vineyard in the viticultural area. Most of the property, purchased in the early 1990's, was previously known as River Junction Vineyards and is located within the northwest and southwest boundaries of the AVA, west of Two Rivers Road.

The following topographical evidence shows that the area is distinct from surrounding areas:

(a) South, east and west boundaries. The River Junction viticultural area is bounded on the west by relatively steep slopes and the San Joaquin River, and is bounded on the south and east by gentle, nearly flat topography and the Stanislaus River. The area is locally unique in terms of topography: its gentle, persistent southwest slope and higher boundaries form a shallow, slightly tilted bowl about 18 to 25 feet in elevation at the center. Original natural boundaries to the west, south and east have been exaggerated by engineered, permanent levees that range from about 35 to 42 feet in elevation. Geographical analyses, provided by the petitioner, show a transect through the River Junction AVA and illustrate the elevation differences that distinguish it.

(b) Northern boundary. The northern boundary of the area is an abrupt, natural elevation change at about the 29 foot contour, delineated by Division Road. Physical evidence indicates that Division Road was placed on the upper side of a pre-existing natural river terrace boundary. The topographic change marked by the road exactly follows geologic and soil type boundaries extending from the east to the center of section 7 on the Ripon, CA quadrangle map T3S/R7E and westward to Airport Way. The natural extension of “Red Bridge Slough” to the northwest is further evidence that this boundary is a natural river terrace.

(c) Northwest boundary. The northwest boundary of the River Junction AVA is delineated by Airport Way, a subtle natural high that is exaggerated by the raised roadbed. Elevation ranges from about 29 to 35 feet. Available geologic and historic evidence strongly supports the conclusion that, like Division Road, Airport Way follows a natural topographic high. The U.S.G.S. maps submitted by the petitioner show two separate sloughs draining from the Airport Way/Division Road intersection. An unnamed slough on the U.S.G.S. Ripon, CA quadrangle map drains southeast through the River Junction AVA, while the other slough, called “Red Bridge Slough” on the U.S.G.S. Vernalis, CA quadrangle map, flows in the opposite direction. A 1925 Reclamation District Map (“southern part”) provided by the petitioner also shows the two sloughs. These two sloughs coincide with occurrences of Merritt soils, which fan out to the northwest and southeast of the Airport Way/Division Road intersection. This provides further evidence that the intersection of Airport Way and Division Road has historically sat on naturally higher topography from which the soils accumulated downhill in two directions.

The following is evidence regarding the soil composition of the River Junction AVA:

(a) Formation and distribution of local soils. The River Junction AVA contains soils that are generally grouped as alluvial, and which formed on the geologic parent material of recent river channel deposits that are exposed in, and partly define, the area. Soils that formed on the stream channel deposits and derived from these deposits, are similar to one another in nature, and are characteristic of the parent sedimentary deposits. These soils are identified as “recent alluvial floodplains soils” and “delta and floodplains soils” in the U.S. Department of Agriculture soils reports for San Joaquin and Stanislaus counties.

Where the Stanislaus River joins the San Joaquin River, bounding topography is steeper to the west and flatter to the east, thus restricting the westward limits of soils. West of the San Joaquin River, northeast facing slopes limit alluvial soils to an area only about 1/2 mile or less in width. These soils, primarily Merritt—Columbia—Dello series and Dospalos—Bolfar complex, are bounded on the west by basin soils of the Willows—Pescadero series and terrace soils of the Capay series. Conversely, east of the San Joaquin River, flatter topography has allowed alluvial soils to accumulate to a width of 1 to 1 1/2 miles.

South of the Stanislaus River there are mostly Columbia—Temple series soils, bounded by basin soils of the Waukena—Fresno association, and alluvial fan soils of the Modesto—Chualar group that extend eastward.

North of the Stanislaus River, elevation is slightly higher than to the south, and topography is nearly flat but includes subtle northwest-facing and more strongly expressed southwest-facing slopes. Here the alluvial soils reach 1 1/2 miles in width and are composed of Merritt—Grangeville—Columbia series with lesser amounts of Dello and Egbert soils. They are bounded to the east by terrace soil groups, primarily of the Delhi—Veritas—Tinnin series.

(b) Unique soil composition of area. The River Junction viticultural area is a mix of soils that differs from the surrounding areas. Among the total soils, nearly one-half are sandy types, and about one-fourth of the total is fine sandy loam of the Grangeville series. Soil types include about 25 percent Grangeville fine sandy loam; about 50 percent Merritt silty clay loam; nearly 25 percent Columbia fine sandy loams; and less than 1 percent Veritas silty clay loam. None of the surrounding areas has nearly as high a ratio between sandy loam to clay loam soils. Grangeville sandy loam is unusual in this part of the southern delta. The single other local occurrence of Grangeville sandy loam soil is west of the San Joaquin River, 1 1/2 miles northwest, and is less than 11 acres in area.

Grangeville and Columbia series are formed in alluviums derived from granitic rock sources and the Merritt series is formed in alluviums from mixed rock sources. The Grangeville, Merritt, and Columbia series of soils are characterized as “prime farmland.” These soils are all very deep, less well drained, and have moderate to high water capacity. Permeability ranges from moderately slow in the Merritt series to rapid in the Columbia and Grangeville series. They occupy nearly flat areas at low elevation and are occasionally flooded. They are exceedingly fertile soils that are capable of supporting wine grapes, almonds, tomatoes, sugar beets, wheat and other crops. Grapes have been grown on Columbia soils, but apparently, in San Joaquin County at least, have not been previously grown on bottomlands with Grangeville and Merritt.

Soil samples collected on-site at the viticultural area during October 1997 include one sample from each of the dominant units. Brief low-power microscopic analysis from each of these samples indicated similar texture and composition. All samples contained abundant angular quartz grains and mica flakes, indicating granitic origin. These soils are mineralogically young and should be expected to be very high in available minerals.

(c) Comparisons with surrounding areas. The River Junction viticultural area is clearly distinct from all potentially comparable adjacent local tracts, including the Red Bridge Slough, Walthall Slough, and Northeast areas.

As would be expected of deposits formed along rivers, downstream alluvial soils have a wider distribution than does their parent alluvial substrate, due to stream transport, while upstream the derived soils are less widely distributed than the underlying stream channel deposits.

In the River Junction viticultural area, derived alluvial soils strictly overlap but do not extend beyond their parent recent river deposits. The strict relationship between the channel deposits and their derived soils in the area results in a strikingly distinct northern boundary.

The location of these soil changes corresponds to the location of a strongly expressed terrace (distinct change in elevation) which angles northwest from the Stanislaus River near its mouth. Its upper side is nearly exactly followed by Division Road. This terrace probably marks the highest flood stage in historically recent times and suggests that soils in the area are probably derived from Stanislaus River alluvium. This would explain the distinctively high granitic content of these soils as compared with the surrounding area.

In the Red Bridge Slough area (north of the AVA's boundary following Airport Way) overlap of alluvial soils with parent channel deposits is less exact and the soils are restricted to the west of the Slough. This tract has a slight northwest slope and, based on field observation, is wetter than the River Junction viticultural area. It has no strongly expressed northern or eastern boundaries, and thus would have less temperature extremes than the AVA due to the absence of topographic enclosure.

The Red Bridge Slough area also has soils that are different from the proposed River Junction AVA. It contains about 35 percent Columbia loam. At its center it includes 10 percent Egbert silty clay loam. No Grangeville sands are present. As indicated above, the tract is part of River Junction Reclamation District No. 2064, which was recorded as River Junction Farms subdivision no. 3 in 1925. Durham Ferry State Recreation Area occupies about 20 percent of the tract, and the remaining part is essentially flat at 20-25 feet elevation.

Southeast of Walthall Slough, located north of the Red Bridge Slough area, the relationship between channel deposits and derived soils is obscure. Here the soils occupy a larger expanse than do the underlying stream deposits. They include nearly 40 percent Columbia soils and about 20 percent Dello clay loam. No Grangeville sands are present. Topographically, this area is essentially flat to slightly northwest sloping. In terms of soils, and the microclimate that would be inferred from the flat and open topography, it is completely different from the AVA.

To the northeast, recent river alluvium still underlies the soils but soils in this area include about 20 percent Veritas and Manteca series. No Grangeville sands are present. Otherwise, the Merritt and Columbia soils percentages are comparable to the River Junction AVA. However, this area is higher and flatter, averaging about 30-35 feet elevation, and has no distinct topographic boundaries. Therefore, it undoubtedly has less temperature extremes than the AVA. This area comprises about 195 acres of the original River Junction Farms subdivision no. 2.

The River Junction AVA is shown on a Sacramento-San Joaquin Delta map (“Base Map Source—Department Of Water Resources”). The AVA appears within the boundaries of the aforementioned delta, at the southeasternmost tip. The southernmost edge of the Sacramento-San Joaquin River Delta is more modified by inland weather patterns than other parts of the Delta. This part of the Delta experiences more extreme high and low temperatures, although still receiving maritime influence. It is subject to little rainfall (10 to 11 inches per year) and, at its southernmost part, lies within the rain shadow of the maritime influenced land to the west. This is the driest part of the Delta and can be considered as arid to semiarid with maritime influence.

The viticultural area is distinctively cooler than the immediate surrounding area (Modesto, Stockton, Tracy Carbona, Tracy Pumping Plant, and Rivercrest Vineyards). Temperature data from 1995 and 1996 were recorded by a weather station located near the center of the River Junction AVA, at Rivercrest Vineyards. The monthly-averaged data show that minimum temperatures are consistently slightly cooler than elsewhere in the region, especially in summer. Average high temperatures are similar to Antioch and Lodi, which are significantly closer to the Suisun and San Francisco Bays and would be expected to experience more cooling from the maritime influence. Average low temperatures are generally the coolest among Tracy Carbona and Tracy Pumping Plant. Significantly, minimum August temperatures are 2 to 5 degrees cooler than Tracy, Stockton, and Modesto.

Grapes grown here are also subject to seasonally later frosts as pointed out by an unpublished agricultural analysis by Cook and Lider dated 1972.

ATF did not receive any comments in response to Notice No. 901. Having analyzed and evaluated the evidence contained in the petition, ATF is adopting the River Junction viticultural area as proposed.

The boundaries of the River Junction viticultural area may be found on the following two 1:24,000 Scale U.S.G.S. topographical maps. They are titled:

It has been determined that this proposed regulation is not a significant regulatory action as defined by Executive Order 12866. Accordingly, this proposal is not subject to the analysis required by this Executive Order.

It is hereby certified that this proposed regulation will not have a significant economic impact on a substantial number of small entities. Any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from a particular area. No new requirements are imposed. Accordingly, a regulatory flexibility analysis is not required.

The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(j)) and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because no requirement to collect information is proposed.

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

On November 21, 1980, the Secretary of Interior conditionally approved the Missouri program. You can find general background information on the Missouri program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the November 21, 1980, Federal Register (45 FR 77017). You can find later actions on the Missouri program at 30 CFR 925.12, 925.15, and 925.16.

On January 29, 1982, the Secretary of the Interior approved the Missouri plan. Background information on the Missouri plan, including the Secretary's findings, the disposition of comments, and the approval of the plan can be found in the January 29, 1982, Federal Register (47 FR 4253). Subsequent actions concerning the Missouri plan and amendments to the plan can be found at 30 CFR 925.25.

By letter dated October 5, 2000 (Administrative Record No. MO-662.1), Missouri sent us an amendment to its program and plan under SMCRA and the Federal regulations at 30 CFR 732.17(b) and 884.15, respectively. Missouri sent the amendment in response to our letter dated June 17, 1997 (Administrative Record No. MO-651), that we sent to Missouri under 30 CFR 732.17(c), and in response to required program amendments codified at 30 CFR 925.16. The amendment also includes changes made at Missouri's own initiative. Missouri proposed to amend the Missouri Code of State Regulations (CSR) at Title 10, Division 40.

We announced receipt of the amendment in the October 31, 2000, Federal Register (65 FR 64906). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on November 30, 2000. Because no one requested a public hearing or meeting, we did not hold one.

During our review of the amendment, we identified concerns relating to spillways, temporary impoundments, air resource protection, and the exemption for coal extraction incidental to the extraction of other minerals. We notified Missouri of these concerns by letter dated December 15, 2000 (Administrative Record No. MO-662.5).

By letter dated January 12, 2001 (Administrative Record No. MO-662.6), during a telephone conference on February 13, 2001 (Administrative Record No. MO-662.7), and by letter dated April 17, 2001 (Administrative Record No. MO-662.8), Missouri provided us additional explanatory information regarding its provisions for spillways. Because the additional information merely clarified Missouri's proposed spillway requirements, we did not reopen the public comment period. In its letters, Missouri indicated that it would submit revisions to its rules relating to temporary impoundments, air resource protection, and the exemption for coal extraction incidental to the extraction of other minerals in a future rulemaking. Therefore, we are proceeding with the publication of this final rule Federal Register document.

Following, under SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 884.15, are the Director's findings concerning the amendment to the Missouri program and plan.

Any revisions that we do not discuss below are about minor wording changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

Missouri proposed minor wording, editorial, and rule reference changes to several previously-approved rules.

1. Missouri corrected rule references at 10 CSR 40-3.040(4)(A)1, 40-3.040(13)(A)1.A, 40-3.040(13)(B)1, 40-3080(3)(D), 40-3.200(12)(A)1.A, 40-3.200(12)(B)1, 40-4.010(3)(J), 40-4.020(2)(B), 40-4.050(11), 40-4.050(12), 40-6.020(7)(A), 40-6.050(9)(C)3, 40-6.050(9)(C)4, 40-6.070(8)(C), 40-6.070(8)(D)3, 40-6.090(6)(A), 40-6.090(7), 40-8.010(1)(A)97.B, 40-8.030(6)(A)3, 40-8.030(12)(C), and 40-8.070(2)(C)1.A(II).

2. At 10 CSR 40-4.030(3)(A), (6)(A), and (7)(B)2 and 7; 40-6.040(16)(C)1 and 3; and 40-6.060(4), Missouri corrected references to the United States Natural Resources Conservation Service (NRCS) by replacing the “United States Soil Conservation Service” and “SCS” with the current agency name and acronym, the “United States Natural Resources Conservation Service” and “NRCS,” respectively. At 10 CSR 40-8.010(1)(A) 52.C, Missouri revised the secondary definition of “prime farmland” in its definition of “land use” by adding the information “(now known as the Natural Resources Conservation Service)” after the term “Soil Conservation Service.”

3. Missouri corrected typographical errors at 10 CSR 40-3.080(8)(A), 40-6.070(5) (B)4, and 40-6.070(10)(D).

4. At 10 CSR 40-3.050, 40-4.010, 40-4.030, 40-6.020, and 40-8.050, Missouri revised the purpose statements to identify the topic and statutory authority of the rules.

Because the above revisions are minor and do not change the meaning of these previously approved rules, we find that they will not make Missouri's rules less effective than the counterpart Federal regulations.

The State rules listed in the table contain language that is the same as or similar to the corresponding sections of the Federal regulations. Differences between the State rules and the Federal regulations are minor.

Because the above State rules have the same meaning as the corresponding Federal regulations, we find that they are no less effective than the Federal regulations.

1. 10 CSR 40-3.010(6) Buffer Zone Markers. Missouri added a reference to 10 CSR 40-8.010(1)(A)13 in its rule for buffer zone markers. Missouri's rule at 10 CSR 40-8.010(1)(A)13 defines the term “buffer zone.” Although the Federal regulation at 30 CFR 816.11(e) for buffer zone markers does not contain a counterpart reference, we find that Missouri's reference to its approved definition of “buffer zone” will not make its rule at 10 CSR 40-3.010(6) less effective than the Federal regulation.

2. 10 CSR 40-3.020 Requirements for Casing and Sealing of Drilled Holes. In its rules at 10 CSR 40-3.020(1) and (3), Missouri corrected a citation reference by changing 10 CSR 40.3.040(13) to 10 CSR 40-3.040(14). Missouri also added a reference to the rules of the Wellhead Protection Section, Division of Geology and Land Survey, at 10 CSR 23, Chapter 6. Coal mine operators in Missouri must meet both the requirements of 10 CSR 40-3.040(14) and the Division of Geology and Land Survey's rules at 10 CSR 23, Chapter 6, in order to convert a drilled hole, borehole, or monitoring well into a water well. Missouri's rule at 10 CSR 40-3.040(14) contains provisions for transferring exploratory or monitoring wells for use as water wells. We find that changing the existing citation reference to 10 CSR 40-3.040(14) is appropriate because it is consistent with the reference to 30 CFR 816.41 in the counterpart Federal regulations at 30 CFR 816.13 and 816.15. The Federal regulation at 30 CFR 816.41 allows wells to be transferred to another party for further use if approved by the regulatory authority and if the transfer complies with State and local law. Therefore, we find that requiring coal mine operators to meet other State regulations relating to water wells, as well as the State counterpart to 30 CFR 816.41, will not make Missouri's rules at 10 CSR 40-3.010(1) and (3) less effective than the counterpart Federal regulations at 30 CFR 816.13 and 816.15.

3. 10 CSR 40-3.040 and 10 CSR 40-3.200 Requirements for Protection of the Hydrologic Balance. Missouri proposed several changes to its rules at 10 CSR 40-3.040 for surface mining operations and 10 CSR 40-3.200 for underground mining operations.

a. Missouri replaced all instances of the term “sedimentation ponds” with the term “siltation structures” in its rules at 10 CSR 40-3.040(2)(A), 40-3.040(6), 40-3.040(8), 40-3.040(17), 40-3.200(2)(A), 40-3.200(6), 40-3.200(8), and 40-3.200(16). On October 20, 1994, OSM replaced the term “sedimentation ponds” with the term “siltation structures” in many of its counterpart regulations (59 FR 53022). OSM did this because the term “siltation structures” provides a broader classification of structures for the control of sediment than the term “sedimentation ponds.” For this reason and because sedimentation ponds are included in the Missouri and the Federal definitions of “siltation structure” at 10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5, respectively, we find that Missouri's changes will not make its rules less effective than the counterpart Federal regulations.

b. 10 CSR 40-3.040(4) and 10 CSR 3.200(4) Stream Channel Diversions. On September 29, 1992, we required Missouri to amend its rules at 10 CSR 3.040(4) and 40-3.200(4) to require the certification of any design criteria set by the regulatory authority as required at 30 CFR 816.43(b)(4) and 817.43(b)(4). We codified this requirement at 30 CFR 925.16(f)(1). In response to this requirement, Missouri added the language “and any design criteria set by the director” at the end of 10 CSR 40-3.040(4)(B)3 and 40-3.200 (4)(B)3. The revised rules require the design and construction of all stream channel diversions of perennial and intermittent streams to be certified by a qualified registered professional engineer as meeting the performance standards of the rules and any design criteria set by the director. We find that Missouri's revised rules at 10 CSR 40-3.040(4)(B)3 and 40-3.200(4)(B)3 are substantively identical to the counterpart Federal regulations at 30 CFR 816.43(b)(4) and 817.43(b)(4), respectively. The revisions also satisfy the required amendment that was codified at 30 CFR 925.16(f)(1), which we are removing.

c. At 10 CSR 40-3.040(10)(A) and 40-3.200(10)(A), Missouri added the following new provision:

We find that Missouri's new provision contains requirements that are substantively the same as the counterpart Federal regulation requirements at 30 CFR 816.49(a)(1) and 817.49(a)(1). Therefore, we are approving Missouri's revised rules at 10 CSR 40-3.040 (10)(A) and 40-3.200(10)(A).

d. At 10 CSR 40-3.040(10)(B)5 and 40-3.200(10)(B)5, Missouri updated its reference to the requirements for impoundments that do not meet the size or other criteria contained in 30 CFR 77.216(a) by changing the “United States Soil Conservation Service Practice Standards 378, Ponds, January 1991” to the “United States Natural Resources Conservation Service, Conservation Practice Standard, POND, CODE, No. 378, December 1998.” We are approving this reference change because the December 1998 version of Practice Standard No. 378 is the current version issued by the Natural Resources Conservation Service for the State of Missouri.

e. Missouri added a new subsection at 10 CSR 40-3.040(10)(L) and 40-3.200(10)(L) entitled “Stability.” As shown above in finding B, paragraphs (10)(L)1 are substantively the same as the counterpart Federal regulations. Paragraphs (10)(L)2 require an impoundment not meeting the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a), except for a coal mine waste impounding structure, to have a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions or meet the requirements of the Natural Resources Conservation Service, Conservation Practice Standard 378, “Ponds,” December 1998, and be less than 20 feet in height.

Missouri's rules provide for two alternatives to determine the stability of an embankment for impoundments that do not meet the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a). The first alternative requires that the slope stability of the earth embankment meet the same 1.3 minimum static safety factor requirements for steady state seepage as found in 30 CFR 816.49(a)(4)(ii) and 817.49(a)(4)(ii). The second alternative refers to the NRCS Practice Standard No. 378 design standards developed for Missouri in December 1998. On November 17, 2000, we conducted a technical review of these standards (Administrative Record No. MO-662.4). The NRCS Practice Standard No. 378 requires that slopes be 2.5H:1V or flatter with combined slopes being 6H:1V or flatter for an embankment. This is a conservative standard when compared to other approved design standards, usually 5H:1V. It further requires that the slopes be stable, even if flatter slopes are required. The slope stability evaluation must be based on soil mechanics analysis or past experience in the surrounding area. The Federal regulations at 30 CFR 816.49(a)(4)(ii) and 817.49(a)(4)(ii) allow a regulatory authority to establish engineering design standards comparable to the 1.3 static safety factor for impoundments not meeting the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a). Our technical review of Conservation Practice Standard No. 378 found that its design standards are comparable to the 1.3 static safety factor required for these types of impoundments. Therefore, we find the proposed rules at 10 CSR 40-3.040(10)(L)2 and 40-3.200(10)(L)2 are no less effective than the counterpart Federal regulations at 30 CFR 816.49(a)(4)(ii) and 817.49(a)(4)(ii), respectively.

f. Missouri added a new subsection at 10 CSR 40-3.040(10)(O) and 10 CSR 40-3.200(10)(O) entitled “Spillways.”

(1) Missouri rules at 10 CSR 40-3.040(10)(O)2 and 40-3.200(10)(O)2 provide the spillway requirements for permanent and temporary impoundments. They specify the design precipitation events that the various types of impoundments must be designed and constructed to safely pass or contain. With the following differences, Missouri's rules at 10 CSR 40-3.040(10)(O)2 and 40-3.200(10)(O)2 are substantively the same as the counterpart Federal regulations at 30 CFR 816.49(a)(9) and 817.49(a)(9) for permanent and temporary impoundments with spillways.

(a) Missouri's rules at 10 CSR 40-3.040(10)(O)2.B and 40-3.200(10)(O)2.B contain the spillway design precipitation event requirements for permanent and temporary impoundments meeting or exceeding the size or other criteria of 30 CFR 77.216(a). Missouri's rules provide that the required design precipitation event for this type of impoundment is a 100-year, 24-hour event or greater as specified by the director or commission.

The Federal regulations at 30 CFR 816.49(a)(9)(ii) and 817.49(a)(9)(ii) specify a 100-year, 6-hour or greater design precipitation event for this type of impoundment. We conducted a technical review and found that overall the two are generally accepted as comparable events (Administrative Record No. MO-662.4). The 100-year, 24-hour precipitation event will have a higher peak discharge than the 100-year, 6-hour precipitation event. This means that in Missouri, the spillways for this type of impoundment will be designed and constructed to safely pass the design precipitation event required by the Federal regulations. Therefore, we find Missouri's rules at 10 CSR 40-3.040(10)(O)2.B and 40-3.200(10)(O)2.B are no less effective than the counterpart Federal regulations at 30 CFR 816.49(a)(9)(ii) and 817.49(a)(9)(ii), respectively.

(b) Missouri's rules at 10 CSR 40-3.040(10)(O)2.C and 40-3.200(10)(O)2.C contain the spillway design precipitation event requirements for impoundments not meeting the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a). Missouri's rules provide that the required design precipitation event for this type of impoundment is as specified in Table 3 of the United States Natural Resources Conservation Service, Conservation Practice Standard 378, “Ponds,” December 1998.

We conducted a technical review and found that Table 3 in Conservation Practice Standard 378 contains design criteria for principal and auxiliary spillways for small impoundments (Administrative Record No. MO-662.4). Table 3 includes requirements for sizing principal and auxiliary spillways for 10-year, 24-hour; 25-year, 24-hour; and 50-year, 24-hour design storm events. The requirements for impoundments with watersheds of 20 acres or less includes spillways designed for either a 10-year, 24-hour or 25-year, 24-hour design precipitation event. The Federal regulation standard at 30 CFR 816.49(a)(9)(ii)(C) and 817.49 (a)(9)(ii)(C) for small impoundments is a 25-year, 6-hour or greater precipitation event. The peak flow resulting from a 10-year, 24-hour event will be slightly lower than the peak flow resulting from the 25-year, 6-hour event. A spillway for this type of impoundment must be designed to at least discharge the peak flow produced by the minimum design precipitation event specified in the Federal regulations. This issue was discussed with Missouri during the February 13, 2001, telephone conference (Administrative Record No. MO-662.7). Missouri explained that its policy is to require operators to construct spillways for small impoundments that will meet a 25-year, 24-hour or greater precipitation event design standard. Missouri stated in its letter of April 17, 2001, that its rule at 10 CSR 40-3.040(6)(I) requires a minimum 25-year, 24-hour design event. Missouri indicated that it will add a provision to its rules at 10 CSR 40-3.040(10)(0) and 40-3.200(10)(0) that will require a minimum 25-year, 24-hour design storm event for any emergency or auxiliary spillway. Missouri further stated that until the future rule change becomes effective, it will not approve any temporary or permanent impoundments with an emergency spillway design event less that the 25-year, 24-hour event. Missouri's rule at 10 CSR 40-3.040(6)(I) for sedimentation ponds requires that an appropriate combination of principal and emergency spillways be provided to safely discharge the runoff from a 25-year, 24-hour precipitation event or larger event required in the permit and plan. Our technical review found that a 25-year, 24-hour precipitation event will have a higher peak discharge than a 25-year, 6-hour precipitation event. This means that in Missouri, the spillways for small impoundments that control sediment will be designed and constructed to safely pass the minimum design precipitation event required by the Federal regulations at 30 CFR 816.49(a)(9)(ii)(2)(C) and 817.49(a)(9) (ii)(2)(C). We are approving Missouri's rules at 10 CSR 40-3.040(10)(O)2.C and 40-3.200(10)(O)2.C in combination with its policy letter dated April 17, 2001, and its rule at 10 CSR 40-40-3.040(6)(I) that requires operators to design and construct spillways for impoundments that will safely pass a 25-year, 24-hour or greater precipitation event.

(2) Missouri's rules at 10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3 provide the requirements for temporary impoundments that rely solely on storage capacity to control runoff from a design precipitation event. They specify the design precipitation events that the impoundments must be designed and constructed to contain. With the following differences, Missouri's rules at 10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3 are substantively the same as the counterpart Federal regulations at 30 CFR 816.49(c) and 817.49(c) for temporary impoundments that rely primarily on storage to control the runoff from a design precipitation event.

(a) Missouri's rules at 10 CSR 40-3.040(10)(O)3.B and 40-3.200(10)(O)3.B contain the design precipitation event requirements for temporary impoundments, with no spillways, that do not meet the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a). These impoundments rely primarily on storage to control the runoff from a design precipitation event. Missouri's rules specify that this type of temporary impoundment shall be designed to control the precipitation of a 100-year, 24-hour event.

The Federal regulations at 30 CFR 816.49(c)(2)(ii) and 817.49(c)(2)(ii) specify a 100-year, 6-hour or greater event for this type of temporary impoundment. As discussed above under finding 3(f)(1)(a), we determined that 100-year, 6-hour and 100-year, 24-hour events are generally accepted as comparable design precipitation events. However, the total runoff from the 100-year, 24-hour precipitation event will be larger than from a 100-year, 6-hour event with a similar return period. This means that in Missouri, temporary impoundments without spillways that do not meet the Class B or C criteria for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a) will be designed and constructed to safely control the runoff from the minimum design precipitation event required by the Federal regulations. Therefore, we find that Missouri's rules at 10 CSR 40-3.040(10)(O)3.B and 40-3.200(10)(O)3.B are no less effective than the counterpart Federal regulations at 30 CFR 816.49(c)(2)(ii) and 817.49(c)(2)(ii).

(b) Missouri's rules at 10 CSR 40-3.040(10)(O)3.C and 40-3.200(10)(O)3.C provide spillway design, precipitation event requirements for permanent and temporary impoundments. These paragraphs do not contain any requirements for temporary impoundments that rely solely on storage capacity to control the runoff from a design precipitation event, which is the intended purpose of the provisions in 10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3. Instead, they contain the same requirements as Missouri's proposed rules at 10 CSR 40-3.040(10)(O)2.C and 40-3.200(10)(O)2.C for impoundments that rely on spillways to safely pass the applicable design precipitation event.

We find that Missouri's rules at 10 CSR 40-3.040(10)(O)3.C and 40-3.200(10)(O)3.C are not consistent with the other requirements of Missouri's rules at 10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3 or with the Federal regulation requirements at 30 CFR 816.49(c) and 817.49(c) for temporary impoundments that rely primarily on storage to control the runoff from a design precipitation event. Further, we are requiring Missouri to remove these provisions from its program. In its January 12, 2001, letter, Missouri indicated that the two paragraphs (10 CSR 40-3.040(10)(O)3.C and 10 CSR 40-3.200(10)(O)3.C) were inappropriate in this part of its program and will be deleted in a future rulemaking.

g. 10 CSR 40-3.040(14) and 10 CSR 40-3.200(13)(B) Transfer of Wells. Missouri revised 10 CSR 40-3.040(14)(B)3 and 40-3.200(13)(B)3 to require that upon transfer of a well, the transferee must assume primary responsibility for compliance with 10 CSR 40-3.020 and 40-3.180, respectively, and those rules of the Wellhead Protection Section, Division of Geology and Land Survey, at 10 CSR 23, Chapter 3, applicable to the well. The current rules just require compliance with 10 CSR 40-3.020 and 40-3.180, which are counterparts to the Federal regulations at 30 CFR 816.13 through 15 and 817.13 through 15, respectively. The Wellhead Protection Section, Division of Geology and Land Survey rules provide requirements that owners must meet for protection of groundwater quality and resources and maintenance of wells. The Federal regulations at 30 CFR 816.41(g) and 817.41(g) allow wells to be transferred to another party for further use if approved by the regulatory authority and if the transfer complies with State and local law. Therefore, we find that requiring coal mine operators to meet other State regulations relating to water wells will not make Missouri's rules at 10 CSR 40-3.040(14)(B)3 and 40-3.200 (13)(B)3 less effective than the counterpart Federal regulations.

4. 10 CSR 40-3.050 Requirements for the Use of Explosives. At 10 CSR 40-3.050(1)(D)1.A, Missouri proposes to clarify that an operator must submit a blast design if blasting operations will be conducted within 1000 feet of a dam that is outside the permit area. At 10 CSR 40-3.050(2)(A), Missouri proposes to clarify that the operator must notify owners of dams that are located within one-half mile of the permit area at least forty days before initiation of blasting and tell them how to request a preblast survey.

Missouri's currently approved rules require a blast design for dams and an opportunity for a preblasting survey for owners of dams because of each rule's reference to structures listed in 10 CSR 40-3.050(5)(D)1. The structures listed in 10 CSR 40-3.050(5)(D)1 include dams. We find that Missouri's clarification of its rules at 10 CSR 40-3.050(1)(D)1.A and 10 CSR 40-3.050(2)(A) will not make them less effective than the counterpart Federal regulations at 30 CFR 816.61(d)(i) and 816.62(a), respectively.

5. 10 CSR 40-3.090, Surface Mining Operations, and 10 CSR 40-3.240, Underground Mining Operations: Air Resource Protection. On September 29, 1992, we required Missouri to amend its rules at 10 CSR 40-3.090 and 40-3.240 by providing performance standards that address air quality in a manner no less effective than the Federal regulations at 30 CFR 816.95(a) and 817.95(a). We codified this requirement at 30 CFR 925.16(p)(4). The Federal regulations require that all exposed surface areas be protected and stabilized to effectively control erosion and air pollution attendant to erosion.

a. Missouri revised 10 CSR 40-3.090 by adding the following new provision at the end of the previously approved rule language:

We find that Missouri's new provision at 10 CSR 40-3.090 is substantively identical to the Federal regulation requirement for protection of air resources at 30 CFR 816.95(a), and we are approving it. Missouri's new provision also satisfies a portion of the required amendment that we codified at 30 CFR 925.16(p)(4), and it will be modified accordingly.

b. Missouri removed the existing requirements at 10 CSR 40-3.240 and added the following new requirement:

The counterpart Federal regulation at 30 CFR 817.95(a) requires all exposed surface areas to be protected “and stabilized to effectively control erosion and air pollution” attendant to erosion. We find that Missouri's revised rule at 10 CSR 40-3.240 is less effective than the Federal regulation because it is missing pertinent requirements relating to control of erosion and air pollution. Therefore, we are not approving Missouri's revised rule to the extent that it is missing these requirements, and we are modifying 30 CFR 925.16(p)(4) to require further revision to 10 CSR 40-3.240.

6. 10 CSR 40-3.110(6) Regrading or Stabilizing Rills and Gullies. On July 13, 1995 (60 FR 36046), we required Missouri to revise 10 CSR 40-3.110(6)(B) to clearly require, for areas that have been previously mined, either topsoil or a topsoil substitute, in accordance with its rules at 10 CSR 40-3.030. We codified this requirement at 30 CFR 925.16(q)(2). In response to this requirement, Missouri revised 10 CSR 40-3.110(6)(B) to read as follows:

We find that Missouri's revised rule at 10 CSR 40-3.110(6)(B) meets the requirements of the Federal regulations at 30 CFR 816.106(a) and 816.102(d)(2) concerning redistribution of topsoil on previously mined areas, and we are approving it. We also find that Missouri's revision satisfies the required amendment at 30 CFR 925.16(q)(2), which we are removing.

7. 10 CSR 40-3.120 and 10 CSR 40-3.270 Revegetation Requirements. Missouri proposed several changes to its rules at 10 CSR 40-3.120 for surface mining operations and 10 CSR 40-3.270 for underground mining operations.

a. 10 CSR 40-3.120(5) and 10 CSR 40-3.270(5) Grazing. On September 29, 1992 (60 FR 44666), we required Missouri to revise 10 CSR 40-3.120(5) and 40-3.270(5) by removing or defining the term “range land.” We codified this requirement at 30 CFR 925.16(p)(5). In response to this requirement, Missouri removed the term “range land” from its provisions for grazing at 10 CSR 40-3.120(5) and 40-3.270(5).

Based on the discussion in finding 19 of the September 29, 1992, Federal Register (57 FR 44665), we find that, with the removal of the term “range land,” Missouri's requirements at 10 CSR 40-3.120(5) and 40-3.270(5) for grazing and pasture land are no less effective than the Federal regulation requirements at 30 CFR 816.116(b)(1) and 817.116(b)(1), respectively. We also find that Missouri has satisfied the required amendment at 30 CFR 925.16(p)(5), which we are removing.

b. 10 CSR 40-3.120(8) and 10 CSR 40-3.270(8) Reclamation Schedule. Missouri replaced all instances of the term “sedimentation ponds” with the term “siltation structures” in its rules at 10 CSR 40-3.120(8)(A)4, (B), and (D) and 10 CSR 40-3.270(8) (A)4 and (B). Because sedimentation ponds are included in the Missouri and the Federal definitions of “siltation structure” at 10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5, respectively, we find that Missouri's changes will not make its rules less effective than the counterpart Federal regulations. Also, because the term “siltation structures,” as defined, includes a broader range of sediment control structures than the term “sedimentation ponds,” we find that Missouri's revisions clarify that all sediment control structures, not just sedimentation ponds, are included in the reclamation schedule requirements.

8. 10 CSR 40-3.140 Road and Other Transportation Requirements. On September 29, 1992 (60 FR 44669), we required Missouri to revise 10 CSR 40-3.140(1)(A) by requiring that all exposed surfaces be stabilized in accordance with current prudent engineering practices. We codified this requirement at 30 CFR 925.16(p)(9). In response to this requirement, Missouri removed the word “road” from the phrase “as well as dust occurring on other exposed road surfaces.” Missouri's revised rule at 10 CSR 40-3.140(1) (A) now requires that Class 1 roads be maintained to control or prevent erosion; siltation; and the air pollution attendant to erosion, including road dust as well as dust occurring on other exposed surfaces.

Because the Federal regulation at 30 CFR 816.150(b)(1) provides the same requirements for roads, we find that Missouri's revised rule is no less effective than the Federal regulation. We also find that Missouri has satisfied the required amendment at 30 CFR 925.16(p)(9), which we are removing.

1. 10 CSR 40-6.010(4)(B)2 Renewal of Valid Permits. Missouri corrected a citation reference in its existing provision at 10 CSR 40-6.010(4)(B)2 by changing “10 CSR 40-6.080(5) and (6)” to “10 CSR 40-6.090(5) and (6).” Missouri also added the following new provision to the end of 10 CSR 40-6.010(4)(B)2:

As revised, the existing provision in 10 CSR 40-6.010(4)(B)2 requires a permittee to file an application for renewal of a permit under 10 CSR 40-6.090(5) and (6) at least 120 days before the expiration of the permit. The corrected citation reference is appropriate because 10 CSR 40-6.090(5) and (6) contain Missouri's requirements for permit renewals. This provision is substantively the same as the Federal regulation at 30 CFR 774.15(b)(1). Missouri's new provision in 10 CSR 40-6.010(4)(B)2 is substantively the same as the counterpart Federal provision in 30 CFR 773.11(a). Based on the above discussion, we find that Missouri's provisions at 10 CSR 40-6.010(4)(B)2 are no less effective than the counterpart Federal regulation provisions at 30 CFR 774.15(b)(1) and 773.11(a), respectively.

2. 10 CSR 40-6.010(6)(A) Permit Fees. Missouri removed the existing third sentence that specified that “[a]ll permits shall be on a yearly basis and shall require the entire initial fee and the acreage fee for that year.” Missouri also revised the existing fifth sentence to read as follows:

Missouri's removal of the existing third sentence eliminates an apparent conflict with other provisions in the rule that allow multiple year permits. Missouri revised the existing fifth sentence to clarify that the annual fee and acreage fee must be paid until the operator obtains the final liability release on all permitted acres. The Federal regulation at 30 CFR 777.17 requires the regulatory authority to determine the amount of the permit application fee and allows the regulatory authority to develop procedures for the fee to be paid over the term of the permit. Based on the above discussion, we find that Missouri's revisions will not make its previously approved rule less effective than the counterpart Federal regulation.

3. 10 CSR 40-6.030 and 10 CSR 40-6.100 Minimum Requirements for Legal, Financial, Compliance and Related Information. We are approving Missouri's proposed revisions to its rules at 10 CSR 40-6.030 for surface mining operations and 10 CSR 40-6.100 for underground mining operations. Missouri proposed the revisions to clarify previously approved provisions or to meet the required amendments codified at 30 CFR 925.16(p)(10) and (11) on September 29, 1992.

On December 19, 2000 (65 FR 79582), we revised the Federal counterparts to the rules that Missouri is proposing to amend. Because Missouri submitted its amendment before the date that we published our new regulations, we are using previous versions of the Federal regulations as our standards of comparison. In accordance with the requirements and procedures in 30 CFR 732.17(d) through (f), we will notify Missouri at a later time if we determine that our revised regulations will require additional revisions to the Missouri program.

a. Missouri clarified the introductory paragraph of 10 CSR 40-6.030(1)(C) by adding the phrase “each application shall contain” after the words “as applicable.” The revised paragraph reads as follows:

We find that Missouri's clarification did not change the meaning of this previously approved rule. We also find that the introductory paragraph of 10 CSR 40-6.030(1)(C) is substantively the same as the introductory paragraph of the former Federal regulation at 30 CFR 778.13(c) that was promulgated on April 21, 1997.

b. Missouri revised the introductory paragraph of 10 CSR 40-6.030(1)(D) to read as follows:

We find that Missouri's revised introductory paragraph is substantively the same as the introductory paragraph of the former Federal regulation at 30 CFR 778.13(f) that was promulgated on April 21, 1997.

c. 10 CSR 40-6.030(1)(I) and 10 CSR 40-6.100(1)(I) Identification of Interests and Violation Information Format. On September 29, 1992 (57 FR 44671), we required Missouri to revise its rules to require that a permit applicant submit ownership and control and violation information in a format prescribed by OSM. We codified this requirement at 30 CFR 925.16(p)(10). In response to this requirement, Missouri revised its rules at 10 CSR 40-6.030(1)(I) and 40-6.100(1)(I) to require the applicant to submit the information required by 10 CSR 40-6.010(1) and (2) and 40-6.100(1) and (2) in any prescribed format issued by the “Office of Surface Mining Reclamation and Enforcement (OSMRE).”

We find that Missouri's revised rules at 10 CSR 40-6.030(1)(I) and 40-6.100(1)(I) are substantively the same as the former Federal regulation at 30 CFR 778.13(l) that was promulgated on April 21, 1997, and they satisfy the required amendment at 30 CFR 925.16(p)(10), which we are removing.

d. 10 CSR 40-6.030(2)(C) Surface Mining Permit Applications— Compliance Information. On September 29, 1992 (57 FR 44671), we required Missouri to revise 10 CSR 40-6.030(2)(C) to require any violation of SMCRA to be listed by the operator to make this regulation no less effective than the Federal regulation at 30 CFR 778.14(c). We codified this requirement at 30 CFR 925.16(p)(11). In response to this requirement, Missouri revised 10 CSR 40-6.030(2)(C) to read as follows:

We find that Missouri's revised rule at 10 CSR 40-6.030(2)(C) is substantively the same as the former counterpart Federal regulation at 30 CFR 778.14(c) that was promulgated on April 21, 1997. Missouri's revised rule also satisfies a portion of the required amendment at 30 CFR 925.16(p)(11), which we are removing.

e. 10 CSR 40-6.100(2)(C) Underground Mining Permit Applications—Compliance Information. On September 29, 1992 (57 FR 44671), we required Missouri to revise 10 CSR 40-6.100(2)(C) to require any violation of SMCRA to be listed by the operator to make this regulation no less effective than the Federal regulation at 30 CFR 778.14(c). We codified this requirement at 30 CFR 925.16(p)(11). In response to this requirement, Missouri revised 10 CSR 40-6.100(2)(C) to read as follows:

We find that Missouri's revised rule at 10 CSR 40-6.100(2)(C) is substantively the same as the former counterpart Federal regulation at 30 CFR 778.14(c) that existed on September 29, 1992, the date that we required Missouri to revise its rule. Missouri's revision also satisfies the remaining portion of the required amendment at 30 CFR 925.16(p)(11) by requiring that “any violation of a provision of the Act” be listed by the operator. Missouri's rule at 10 CSR 40-8.010(1)(A)3 defines “Act” to mean SMCRA.

4. 10 CSR 40-6.050 and 10 CSR 40-6.120 Minimum Requirements for Reclamation and Operations Plan. Missouri proposed changes to its rules at 10 CSR 40-6.050 for surface mining operations and 10 CSR 40-6.120 for underground mining operations.

a. Missouri changed the term “sedimentation pond” to the term “siltation structure” in its rules at 10 CSR 40-6.050(5)(B)11, 40-6.050(5)(C)1, 40-6.120(14)(B)10, and 40-6.120(14)(C)1. Because sedimentation ponds are included in the Missouri and the Federal definitions of “siltation structure” at 10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5, respectively, we find that Missouri's changes will not make its rules less effective than the counterpart Federal regulations. Also, because the term “siltation structures,” as defined, includes a broader range of sediment control structures than the term “sedimentation ponds,” we find that Missouri's revisions clarify that all sediment control structures must be shown on the maps and plans of the proposed mine operation.

b. 10 CSR 40-6.050(5) Operations Plan—Maps and Plans. At 10 CSR 40-6.050(5) (C), Missouri removed the provision that would allow, with certain exceptions, a professional geologist experienced in the design and construction of impoundments to prepare and certify maps, plans, and cross-sections required under 10 CSR 40-6.050(5) (B)4, 5, 6, 10, and 11. As revised, Missouri's rule requires all maps, plans, and cross-sections to be prepared and certified by a qualified registered professional engineer, with assistance from experts in related fields such as land surveying and landscape architecture.

With identified exceptions, the counterpart Federal regulation at 30 CFR 780.14(c) requires a qualified registered professional engineer, a professional geologist, or a qualified registered professional land surveyor to prepare and certify the specified cross sections, maps, and plans. A qualified registered professional engineer must certify maps, plans, and cross-sections for the identified exceptions, which include impoundments, siltation structures, excess spoil disposal sites, and coal mine waste disposal sites. Because only a qualified registered professional engineer can prepare and certify the specified cross sections, maps, and plans under the Missouri rule, we find that Missouri's revised rule at 10 CSR 40-6.050(5)(C) is no less effective than the counterpart Federal regulation.

c. 10 CSR 40-6.050(7) and 40-6.120(12) Fish and Wildlife Plan. On July 13, 1995 (60 FR 36047), we required Missouri to revise 10 CSR 40-6.050(7)(D)1 and 40-6.120 (12)(D)1 to require that the description in the fish and wildlife plan be consistent with, respectively, its performance standards for protection of fish, wildlife, and related environmental values at 10 CSR 40-3.100 and 40-3.250. We codified this requirement at 30 CFR 925.16(u). At 10 CSR 40-6.050(7)(D)1, Missouri proposed to require that each fish and wildlife plan description be consistent with the requirements of 10 CSR 40-6.050 and 40-3.100. At 10 CSR 40-6.120(12)(D)1, Missouri proposed to require that each fish and wildlife plan description be consistent with the requirements of 10 CSR 40-6.120 and 40-3.250. Missouri's rules at 10 CSR 40-3.100 for surface coal mining and 40-3.250 for underground coal mining contain performance requirements for the protection of fish, wildlife, and related environmental values.

We find that Missouri's revised rules at 10 CSR 40-6.050(7)(D)1 and 40-6.120(12)(D)1 are substantively the same as the counterpart Federal regulations at 30 CFR 780.16(b)(1) and 784.21(b)(1), respectively, and we are approving them. We also find that Missouri's revisions satisfy the required amendment at 30 CFR 925.16(u), which we are removing.

d. 10 CSR 40-6.050(11) Reclamation Plan—Ponds, Impoundments, Banks, Dams and Embankments. At 10 CSR 40-6.050(11)(A)1.A, Missouri removed the provision that would allow a professional geologist to prepare and certify a general plan for each siltation structure, water impoundment, and coal processing waste bank, dam, or embankment within the mine plan area. As revised, Missouri's rule requires general plans for these structures to be prepared and certified by a qualified registered professional engineer, with assistance from experts in related fields such as land surveying and landscape architecture.

The counterpart Federal regulation at 30 CFR 780.25(a)(1)(i) requires a qualified registered professional engineer, a professional geologist, or a qualified registered professional land surveyor, with assistance from experts in related fields such as landscape architecture, to prepare and certify general plans for these structures. Because use of the word “or” in the Federal regulation would allow any one of the listed professionals to prepare and certify general plans, we find that Missouri's revised rule at 10 CSR 40-6.050(11)(A)1.A is no less effective than the counterpart Federal regulation at 30 CFR 780.25(a)(1)(i).

e. 10 CSR 40-6.050(17) and 40-6.120(15) Transportation Facilities. On September 29, 1992 (57 FR 44671), we required Missouri to provide proof that land surveyors are authorized in the State to prepare and certify plans and drawings for road design or delete the provision from 10 CSR 40-6.050(17)(B) and 40-6.120(15)(B). We codified this requirement at 30 CFR 925.16(p)(12). In response to this requirement, Missouri removed the language “or a qualified registered professional land surveyor” from its provisions at 10 CSR 40-6.050(17)(B) and 40-6.120(15)(B). Missouri's revised rules require the plans and drawings for each class I and II road to be prepared by, or under the direction of, and certified by a qualified registered professional engineer.

In those States that do not authorize land surveyors to certify the design of roads, the Federal regulations at 30 CFR 780.37(b) and 784.24(b) require the plans and drawings for roads to be prepared by, or under the direction of, and certified by a qualified registered professional engineer. Therefore, we find that Missouri's revised rules at 10 CSR 40-6.050(17)(B) and 40-6.120(15)(B) are no less effective than the counterpart Federal regulations at 30 CFR 780.37(b) and 784.24(b), respectively. We also find that Missouri's revisions satisfy the requirements of 30 CFR 925.16(p)(12), which we are removing.

5. 10 CSR 40-6.070 Review, Public Participation and Approval of Permit Applications and Permit Terms and Conditions.

a. 10 CSR 40-6.070(3) Opportunity for Submission of Written Comments on Permit Applications. At 10 CSR 40-6.070(3)(B), Missouri proposed to require that written comments on permit applications by public entities notified under subsections (2)(B) and (C) be submitted to the commission and director within 30 days after the last publication of the newspaper advertisement required by subsection (2)(A). Missouri previously required that written comments be submitted within 60 days after the application is filed.

The counterpart Federal regulation at 30 CFR 773.13(b)(1) requires that written comments on permit applications by these public entities be submitted within a reasonable time established by the regulatory authority. We find that Missouri's proposed time frame is reasonable, and we are approving the revisions to 10 CSR 40-6.070(3)(B).

b. 10 CSR 40-6.070(4) Right to File Written Objections. At 10 CSR 40-6.070(4) (A), Missouri is proposing to require that written objections to an initial, renewed, or revised application for a permit be filed within 30 days after the last publication of the newspaper advertisement required by subsection (2)(A). Missouri previously required that written objections be filed within 60 days after the application is filed.

Missouri's revised rule contains substantively the same requirements for filing written objections as the counterpart Federal regulation at 30 CFR 773.13(b)(2), including the 30-day time frame. Therefore, we find that Missouri's rule at 10 CSR 40-6.070(4)(A) is no less effective than the Federal regulation.

6. 10 CSR 40-6.090(4) Permit Revisions. Missouri is revising 10 CSR 40-6.090 (4)(B)2 to read as follows:

Missouri's rule at 10 CSR 40-6.070 contains requirements for review, public participation, and approval of permit applications. It includes Missouri's provisions for permit terms and conditions. Missouri's rule at 10 CSR 40-6.080 contains requirements for administrative and judicial review of decisions on permit applications.

The Federal regulation at 30 CFR 774.13(b)(2) requires the regulatory authority to establish guidelines for the scale or extent of revisions for which all the permit application information requirements and procedures, including notice, public participation, and notice of decision requirements shall apply. We find that Missouri's revised rule at 10 CSR 40-6.090(4)(B)(2) is consistent with this Federal requirement, and we are approving it.

1. 10 CSR 40-7.011(6) Bond Requirements—Type of Bonds. On September 29, 1992 (57 FR 44673), we required Missouri to revise its rule at 10 CSR 40-7.011(6)(D)8 to provide that, upon issuance of a cessation order, mining operations shall not resume until the regulatory authority has determined that an acceptable bond has been posted as required by the Federal regulations at 30 CFR 800.16(e)(2). We codified this requirement at 30 CFR 925.16(p)(14). In response to this requirement, Missouri revised its rule provisions at 10 CSR 40-7.011(6)(A)8 for surety bonds and 10 CSR 40-7.011(6)(D)8 for self-bonds to require that when a cessation order is issued for failure to replace bond coverage, mining operations shall not resume until the director has determined that an acceptable bond has been posted.

Missouri's revised provisions at 10 CSR 40-7.011(6)(A)8 and 40-7.011(6)(D)8 have substantively the same requirements for replacing bond coverage as the counterpart Federal regulations at 30 CFR 800.16(e) for surety bonds and 800.23(g) for self-bonds. Therefore, Missouri's revised rules are no less effective than the counterpart Federal regulations. Missouri's revision to 10 CSR 40-7.011(6)(D)(8) satisfies the required amendment at 30 CFR 925.16(p)(14), which we are removing.

2. 10 CSR 40-7.021 Duration and Release of Reclamation Liability.

a. 10 CSR 40-7.021(1)(C) and (D)/40-7.021(2)(B)5 and 6 Termination of Jurisdiction. On September 29, 1992 (57 FR 44674), we required Missouri to relocate its provisions at 10 CSR 40-7.021(2)(B)5 and 6 that addressed termination of jurisdiction to an appropriate location in its regulations. Missouri had placed these provisions under its phase II bond release requirements. We were concerned that this location could lead to possible misinterpretation of the requirements for phase II bond release and termination of jurisdiction. We codified this requirement at 30 CFR 925.16(p)(16). In response to the required amendment, Missouri removed its provisions from 10 CSR 40-7.021(2)(B)5 and 6 and added them to 10 CSR 40-7.021(1)(C) and (D) under its period of liability requirements.

As discussed in finding 51 of the September 29, 1992, Federal Register , Missouri's rules for termination of jurisdiction are substantively the same as the counterpart Federal regulations at 30 CFR 700.11(d). Both the Federal regulations and Missouri's rules clarify the circumstances under which a regulatory authority may terminate or reassert jurisdiction for the reclaimed sites of completed surface coal mining and reclamation operations. Because regulatory jurisdiction may only be terminated upon the final release of a performance bond or, where no bond was required, upon a finding that all reclamation had been successfully completed, we find locating these provisions under its requirements concerning the period of reclamation liability at 10 CSR 40-7.021(1) is appropriate. Therefore, we are approving Missouri's deletion of 10 CSR 40-7.021(2)(B)5 and 6 and addition of 10 CSR 40-7.021(1)(C) and (D). We are also removing the required amendment at 30 CFR 925.16(p)(16).

b. 10 CSR 40-7.021(2) Criteria for Release of Reclamation Liability. Missouri replaced the term “sediment ponds” with the term “siltation structures” in its rule at 10 CSR 40-7.021(2)(A). The revised provision provides that phase I bond must be retained on unreclaimed temporary structures, such as roads, siltation structures, diversions and stockpiles.

Because the term “siltation structures,” as defined in Missouri's rules at 10 CSR 40-8.010(1)(A)89 and the Federal regulations at 30 CFR 701.5, includes a broader range of sediment control structures than the term “sedimentation ponds,” we find that Missouri's revision will provide additional guidance for retention of phase I bond for unreclaimed temporary structures.

c. 10 CSR 40-7.021(3) Bond Release Application Procedures. Missouri added the following new procedure at 10 CSR 40-7.021(3)(C):

There is no counterpart Federal regulation. However, we find that this new requirement does not conflict with any existing Federal or State requirements concerning performance bond release. Therefore, 10 CSR 40-7.021(3)(C) will not make Missouri's rules concerning performance bond release at 10 CSR 40-7.021 less effective than the counterpart Federal regulations at 30 CFR 800.40.

1. 10 CSR 40-8.010(1)(A)12 Definition of Best Technology Currently Available. Missouri replaced the term “sedimentation ponds” with the term “siltation structures,” in its definition of “best technology currently available.”

Because the term “siltation structures” provides a broader classification of sediment control structures than the term “sedimentation ponds” and because sedimentation ponds are included in the Missouri and the Federal definitions of “siltation structure” at 10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5, respectively, we find that Missouri's revision will not make its definition of “best technology currently available” less effective than the counterpart Federal definition at 30 CFR 701.5.

2. 10 CSR 40-8.010(1)(A)87 and 40-8.010(1)(A)89 Definitions of Sedimentation Pond and Siltation Structure, respectively. Missouri removed its definition of “sedimentation pond” at 10 CSR 40-8.010(1)(A)87 and added its substantive provisions to the following new definition of “siltation structure” at 10 CSR 40-8.010(1)(A)89:

The counterpart Federal regulation at 30 CFR 701.5 defines “siltation structure” to mean a sedimentation pond, a series of sedimentation ponds, or other treatment facility. As shown above, Missouri's proposed definition of “siltation structure” at 10 CSR 40-8.010(1)(A)89 contains the language from the Federal definition and the previously approved language from its definition of “sedimentation pond” at 10 CSR 40-8.010(1)(A)87. As discussed throughout this document, Missouri replaced all instances of the term “sedimentation pond” with the term “siltation structure” in its rules at 10 CSR 40. Because Missouri no longer uses the term “sedimentation pond” in its rules and because Missouri added the substantive language from its currently approved definition of “sedimentation ponds” to its definition of “siltation structure,” we find that Missouri's removal of its definition of “sedimentation pond” will not make its rules less effective than the Federal regulations. Also, because Missouri's definition of “siltation structure” at 10 CSR 40-8.010(1)(A)89 includes the language from the Federal definition of “siltation structure” at 30 CFR 701.5, we find that Missouri's definition is no less effective than the Federal definition.

3. 10 CSR 40-8.030(1) Inspections. On September 29, 1992 (57 FR 44675), we required Missouri to revise 10 CSR 40-8.030(1)(F) and (G) to remove limitations regarding the required number of inspections of abandoned mine sites. We codified this requirement at 30 CFR 925.16(p)(18). In response to this requirement, Missouri proposed revisions to its regulations at 10 CSR 40-8.030(1)(F)4.A and 40-8.030(1)(G).

Missouri revised 10 CSR 40-8.030(1)(F)4.A by requiring a site to be classified as abandoned only in cases where a permit has either expired or been revoked. Missouri's revised rule is substantively identical to the counterpart Federal regulation at 30 CFR 840.11(g)(4)(i). Missouri revised 10 CSR 40-8.030(1)(G) by removing its existing provisions and adding new provisions that require Missouri to inspect abandoned sites on a frequency commensurate with the public health and safety and environmental conditions present. Missouri must always perform at least one complete inspection per calendar year for each abandoned site. Missouri's revised rule incorporates criteria that must be taken into consideration and documented before it can reduce inspection frequencies at an abandoned site. We find that Missouri's new provisions are substantively identical to the Federal regulation provisions at 30 CFR 840.11(h). We also find that Missouri's revisions at 10 CSR 40-8.030(1)(F)4.A and 40-8.030(1)(G) removed the previous limitations regarding the required number of inspections of abandoned mine sites and satisfied the required amendment at 30 CFR 925.16(p)(18). Therefore, we are approving 10 CSR 40-8.030(1)(F)4.A and 40-8.030(1)(G), and we are removing the required amendment at 30 CFR 925.16(p)(18).

4. 10 CSR 40-8.070(2)(C) Exemption for Coal Extraction Incidental to the Extraction of Other Minerals.

a. 10 CSR 40-8.070(2)(C)1.A Definition of Cumulative Measurement Period. Missouri's current rule at 10 CSR 40-8.070(2)(C)1.A(II)(a) requires that, for coal or other minerals extracted prior to November 1, 1990, a person with an approved exemption for coal extraction incidental to the extraction of other minerals submit a written report of cumulative production and revenue every October after that. On September 29, 1992, we required Missouri to amend 10 CSR 40-8.070(2)(C)1.A(II) to provide appropriate dates for reporting of cumulative production that are no earlier than the date Missouri's October 10, 1990, amendment is published in the Federal Register as a final rule. We codified this requirement at 30 CFR 925.16(p)(20). In response to this requirement, Missouri amended 10 CSR 40-8.070(2)(C)1.A(II)(a) to require that, for coal or other minerals extracted prior to October 1, 1990, a person with an approved exemption for coal extraction incidental to the extraction of other minerals submit an annual written report of cumulative production and revenue on September 30, 1992, and every September 30 after that.

Missouri's October 10, 1990, amendment was published in the Federal Register on September 29, 1992. Therefore, the initial annual reporting date proposed at 10 CSR 40-8.070(2)(C)1.A(II)(a) of September 30, 1992, and subsequent annual reporting date of September 30 satisfy a portion of the required amendment at 30 CFR 925.16(p)(20). However, Missouri's proposed rule still specifies the end of the period for which cumulative production and revenue is calculated is where the coal or other minerals were extracted prior to October 1, 1990, which is a date earlier than September 29, 1992. This date needs to be revised to be no earlier than September 29, 1992. Therefore, we find that Missouri's proposed rule at 10 CSR 40-8.070(2)(C)1.A(II) is less effective than the counterpart Federal regulation at 30 CFR 702.5(a)(2), and we are not approving the October 1, 1990, date proposed at 10 CSR 40-8.070(2)(C)1.A(II)(a). Also, Missouri did not revise its rule at 10 CSR 40-8.070(2)(C)1.A(II)(b). This rule still refers to extraction of coal or other minerals commenced on or after November 1, 1990, which is earlier than the required date. Based on this finding, we are modifying the required amendment at 30 CFR 925.16(p)(20).

b. 10 CSR 40-8.070(2)(C)10.F Revocation and Enforcement—Direct Enforcement. Missouri's current rules at paragraph (2)(C)10.F provide direct enforcement requirements for operators who did or did not conduct activities in accordance with the terms of an approved exemption before revocation of the exemption. Subparagraph (C)10.F(I) specifies that an operator mining in accordance with the terms of an approved exemption shall not be cited for violations of the commission which occurred prior to the revocation of the exemption. Subparagraph (C)10.F(II) specifies that an operator who does not conduct activities in accordance with the terms of an approved exemption shall be subject to direct enforcement action for violations of the commission. Subparagraph (C)10.F(III) specifies that upon revocation of an exemption or denial of an exemption application, an operator shall comply with the reclamation standards of the commission. On September 29, 1992, we required Missouri to amend its rules at 10 CSR 40-8.070(2)(C)10.F(I), (II), and (III). We codified these requirements at 30 CFR 925.16(p)(21). The counterpart Federal regulations at 30 CFR 702.17(d)(1), (2), and (3) have similar requirements with the exception that the Federal regulations either specify violations of the regulatory program or reclamation standards of the regulatory program. Missouri's current rules limit its direct enforcement requirements to violations or reclamation standards of its commission rather than its regulatory program. In response to the required amendment at 30 CFR 925.16(p)(21), Missouri replaced the term “commission” with the term “regulatory program” in each of its rules at 10 CSR 40-8.070(2)(C)10.F(I), (II), and (III).

We find that Missouri's revised rules at 10 CSR 40-8.070(2)(C)10.F(I), (II), and (II) are substantively identical to the counterpart Federal regulations at 30 CFR 702.17(d)(1), (2), and (3), respectively, and we are approving them. We also find that Missouri's revisions satisfy the required amendment at 30 CFR 925.16(p)(21), which we are removing.

1. Missouri revised its rule at 10 CSR 40-9.020(1)(D)4 to require the commission to find in writing whether coal lands and waters damaged and abandoned after August 3, 1977, meet the specified eligibility requirements and priority objectives. Missouri also added the requirement that the commission find in writing that the reclamation priority of the site is the same or more urgent than the reclamation priority for other lands and waters. Missouri's revised rule reads as follows:

The counterpart Federal regulation at 30 CFR 874.12(d) also requires a written determination of eligibility for these sites. Therefore, we find that Missouri's revised rule at 10 CSR 40-9.020(1)(D)4 is consistent with the requirements of the counterpart Federal regulation at 30 CFR 874.12(d)(3), and we are approving it.

2. Missouri added the following new provision at 10 CSR 40-9.020(1)(F):

We find that Missouri's rule at 10 CSR 40-9.020(1)(F) is substantively identical to the counterpart Federal regulation at 30 CFR 874.12(g), and we are approving it.

On October 18, 2000, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Missouri program (Administrative Record No. MO-662.2). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Missouri proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. MO-662.2). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On October 18, 2000, we requested comments on Missouri's amendment (Administrative Record No. MO-662.2), but neither responded to our request.

We asked for public comments on the amendment, but did not receive any.

Based on the above findings, we approve, with certain exceptions and additional requirements, the amendment as sent to us by Missouri on October 5, 2000.

With the requirement that Missouri further revise its rules, we do not approve, as discussed in: finding No. C.3.f(2)(b), 10 CSR 40-3.040(10)(O)3.C and 40-3.200(10)(O)3.C, design precipitation event requirements for permanent and temporary impoundments; finding No. C.5.b, 10 CSR 40-3.240, air resource protection, to the extent that it is missing pertinent requirements relating to control of erosion and air pollution; finding No. F.4.a, 10 CSR 40-8.070(2)(C)1.A(II)(a), definition of cumulative measurement period, to the extent that it uses October 1, 1990, for determining the end of the period for which cumulative production and revenue is reported.

To implement this decision, we are amending the Federal regulations at 30 CFR part 925, which codify decisions concerning the Missouri program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Missouri to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to State programs that are not approved by OSM. In the oversight of the Missouri program, we will recognize only the statutes, rules and other materials approved by the Secretary or by us, together with any consistent implementing policies, directives and other materials. We will require the enforcement by Missouri of only such provisions.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary under SMCRA. Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements of SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. Decisions on proposed abandoned mine land reclamation plans and revisions submitted by a State or Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A). Agency decisions on proposed State and Tribal abandoned mine land reclamation plans and revisions are also categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

On January 19, 1981, the Secretary of the Interior conditionally approved the Oklahoma program. You can find background information on the Oklahoma program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the January 19, 1981, Federal Register (46 FR 4902). You can find later actions concerning the Oklahoma program at 30 CFR 936.15 and 936.16.

By letter dated January 25, 2001 (Administrative Record No. OK-990), the Oklahoma Department of Mines (Department) sent us an amendment to the Oklahoma program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Oklahoma sent the amendment at its own initiative. Oklahoma is amending its rules at OAC 460:20-17-3 concerning permit revisions by providing guidelines for determining when a permit revision is major/significant or minor and by specifying a time period for approval or disapproval of a permit revision application.

We announced receipt of the amendment in the February 15, 2001, Federal Register (66 FR 10403). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on March 19, 2001. Because no one requested a public hearing or meeting, we did not hold one.

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the amendment to the Oklahoma program.

The Federal regulations at 30 CFR 774.13(b)(1) and (2) require regulatory authorities to establish—

(1) A time period within which the regulatory authority will approve or disapprove an application for a permit revision; and

(2) Guidelines establishing the scale or extent of revisions for which all the permit application information requirements and procedures of Subchapter G, including notice, public participation, and notice of decision requirements of 30 CFR 773.13, 773.19(b)(1) and (3), and 778.21 apply. All permit application information requirements and procedures must apply at a minimum to significant permit revisions.

As shown below, we found that Oklahoma's guidelines meet the requirements of the Federal regulations at 30 CFR 774.13(b)(1) and (2). Any revisions that we do not discuss below are about minor wording changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

A. OAC 460:20-17-3(a) General. At Section 460:20-17-3(a) Oklahoma is adding the following provision:

The Federal regulation at 30 CFR 774.13(b)(2) requires the regulatory authority to establish guidelines for the scale or extent of revisions for which all the permit application requirements will apply. It allows flexibility to the regulatory authority to establish both significant and insignificant permit revision guidelines suitable to the operation of the State program. We find that Oklahoma's rule at OAC 460:20-17-3(a) meets the requirements of this Federal regulation, and we are approving it.

B. OAC 460:20-17-3(b) Application requirements and procedures. Oklahoma is removing the existing provisions in Section 460:20-17-3(b), and adding the following new provisions:

The Federal regulation at 30 CFR 774.13(b)(2) requires the regulatory authority to establish guidelines for the scale or extent of revisions for which all the permit application requirements will apply. The Federal regulations provide flexibility to the regulatory authority to establish guidelines suitable to the operation of the State program. We find that Oklahoma's rule at OAC 460:20-17-3(b) meets the requirement of the Federal regulation, and we are approving it.

C. OAC 460:20-17-3(c) Significant revisions. Oklahoma is moving the existing provision in Section 460:20-17-3(c) to new Section 460:20-17-3(f), and is adding the following provision to Section OAC 460:20-17-3(c):

The Federal regulation at 30 CFR 774.13(b)(2) requires all permit application information requirements and procedures of Subchapter G, including notice, public participation, and notice of decision requirements of 30 CFR 773.13, 773.19(b)(1) and (3), and 778.21 to apply at a minimum to significant permit revisions. We find that Oklahoma's rule at OAC 460:20-17-3(c) contains the same requirements for significant permit revisions, and therefore, is no less effective than the Federal regulation.

D. OAC 460:20-17-3(d) Departmental consideration. Oklahoma is moving the existing provision in Section 460:20-17-3(d) to new Section 460:20-17-3(g), and is adding the following new provisions to Section OAC 460:20-17-3(d):

The Federal regulation at 30 CFR 774.13(b)(2) requires the regulatory authority to establish guidelines for the scale or extent of revisions for which all the permit application requirements will apply. The Federal regulations provide flexibility to the regulatory authority to establish permit revision guidelines suitable to the operation of the State program. We find that Oklahoma's rule at OAC 460:20-17-3(d) meets the requirement of this Federal regulation, and we are approving it.

E. OAC 460:20-17-3(e) Minor revisions. Oklahoma is adding the following new provisions at OAC 460:20-17-3(e):

The Federal regulation at 30 CFR 774.13(b)(2) requires the regulatory authority to establish guidelines for the scale or extent of revisions for which all the permit application requirements will apply. It allows flexibility to the regulatory authority to establish both significant and insignificant permit revision guidelines suitable to the operation of the State program. We find that Oklahoma's rule at OAC 460:20-17-3(e) meets the requirements of this Federal regulation, and we are approving it.

F. OAC 460:20-17-3(h) Application decisions. Oklahoma is adding the following new provision at Section 460:20-17-3(h):

The Federal regulation at 30 CFR 774.13(b)(1) requires a regulatory authority to establish a time period within which he or she will approve or disapprove an application for a permit revision. The Federal regulation provides flexibility to the regulatory authority in establishing time periods suitable to operation of the State program. We find that Oklahoma's rule at OAC 460:20-17-3(h) meets the requirements of the Federal regulation, and we are approving it.

On February 5, 2001, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments from various Federal agencies with an actual or potential interest in the Oklahoma amendment (Administrative Record No. OK-990.01). The U. S. Army Corps of Engineers responded on March 2, 2001 (Administrative Record No. OK-990.02), that the proposed amendment was satisfactory to the agency.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Oklahoma proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. OK-990.01). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On February 5, 2001, we requested comments on Oklahoma's amendment (Administrative Record No. OK-990.01), but neither responded to our request.

We requested public comments on the amendment, but did not receive any.

Based on the above findings, we approve the amendment as sent to us by Oklahoma on January 25, 2001.

We approve the rules that Oklahoma proposed with the provision that they be promulgated in identical form to the rules sent to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 936, which codify decisions concerning the Oklahoma program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Oklahoma to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary under SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides a decision on a proposed State regulatory program provision does not constitute major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Therefore, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after publication in the Federal Register. This temporary rule will extend the time period the bridge will operate on an advance notice basis in order to complete maintenance repairs that were scheduled to be completed by May 7, 2001. The Coast Guard published a temporary rule on March 13, 2001, (66 FR 14487) effective from March 13, 2001 through May 7, 2001, to facilitate necessary maintenance at the bridge. The scheduled repairs could not be performed as planned due to inclement weather conditions; therefore, additional time will be required to complete this work.

The Coast Guard did not receive notification from the bridge owner, regarding the need to extend the maintenance period in time to provide 30 days notice prior to this rule's effective date. This temporary rule will not close the bridge to marine traffic at any time. It will simply require mariners to provide advance notification for bridge openings.

The Coast Guard discussed the advance notification periods with all known waterway users likely to be impacted by this change to the drawbridge operation regulations and no objections were received.

Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest since immediate action is needed in order to complete this necessary maintenance at the bridge.

The Lincoln Highway Bridge, at mile 1.8, across the Hackensack River has a vertical clearance of 35 feet at mean high water and 40 feet at mean low water. The existing operating regulations require the bridge to open on signal at all times.

The owner of the bridge, the New Jersey Department of Transportation (NJDOT), initially requested a temporary change to the operating regulations requiring advance notice for bridge openings from February 12, 2001 through May 7, 2001. The bridge owner was initially granted the above temporary final rule (66 FR 14487) effective from March 13, 2001 through May 7, 2001, in order to perform necessary maintenance at the bridge. Due to inclement weather the scheduled repairs will not be completed within the time period covered by the first temporary rule. The bridge owner has requested a second temporary regulation to be effective from May 8, 2001 through July 31, 2001; whereby, the bridge will operate as follows: from May 8, 2001 through July 31, 2001 the Lincoln Highway Bridge shall open on signal; except that, Monday through Thursday, 9 a.m. to 4 p.m., at least a one-hour advance notice for bridge openings is required and from 9 p.m. on Friday through 5 a.m. on Monday, at least a four-hour advance notice for bridge openings is required. Vessels that can pass under the bridges without openings may do so at all times. This temporary rule is necessary in order to complete the remaining maintenance repairs at the bridge.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge will continue to open at all times provided the advance notice is given.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridge will continue to open on signal at all times provided the advance notice is given.

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

The Carlton Bridge, at mile 14.0, across the Kennebec River has a vertical clearance in the closed position of 10 feet at mean high water and 16 feet at mean low water. The existing drawbridge operating regulations are listed at 33 CFR 117.525.

The owner of the bridge, the Maine Department of Transportation, requested a temporary deviation from the drawbridge operation regulations to facilitate the installation of an alternate diesel powered operating system at the bridge. The bridge will be out of service during the construction necessary to install the back-up diesel operating system.

This deviation to the operating regulations authorizes the owner of the Carlton Bridge to keep the bridge in the closed position from 7 a.m. on May 24, 2001 through 7 p.m. on June 7, 2001.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forego notice and comment for this rulemaking because notice and comment are unnecessary. The Coast Guard believes notice and comment are unnecessary because all the facilities that operate on the Chelsea River agreed to the requested closure dates at a meeting on March 1, 2001. The recreational vessels that use the Chelsea River will not be effected by the bridge not fully opening because there will still be 135 feet of navigable channel with unlimited airspace available when the bridge is opened to a 49 degree angle. Deep draft vessels will be prohibited from transiting the waterway during the specified dates closures as a result of a safety zone that is pending publication in the Federal Register .

The P.J. McArdle Bridge, at mile 0.3, across the Chelsea River, has a vertical clearance of 21 feet at mean high water, and 30 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.593.

The bridge owner, the City of Boston, requested a temporary deviation from the drawbridge operating regulations at a meeting on March 1, 2001, between the Coast Guard and the upstream facilities that operate on the Chelsea River. All the facilities agreed to the proposed closure schedule. The recreational vessels that transit the Chelsea River will not be effected by the bridge being in the partial open position of 49 degrees because they will still have 135 feet of navigable channel with unlimited airspace to pass through the bridge.

During the closure periods the bridge bascule spans will be at approximately a 49 degree angle of opening. This will reduce the navigable channel with unlimited airspace from 175 feet to 135 feet. This partial open position is necessary in order to perform structural repairs at the bridge.

This temporary final rule allows the bridge owner to keep the bridge in the partial open position for eight, three and a half day, closure periods, from sunset on Monday through sunrise on Friday. This closure schedule will allow 10 days between each closed period for full operation of the bridge.

The bridge will be in the partial open position from sunset on Monday through sunrise on Friday on the following dates:

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the requested closures were agreed upon in advance by the upstream facilities that use this waterway.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” comprise small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the requested closures were agreed upon in advance by the upstream facilities that use this waterway.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for the temporary final rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Motor vehicles are significant contributors of carbon monoxide (CO) emissions. An important control measure to reduce these emissions is the use of oxygenates in motor vehicles' gasoline. Extra oxygen enhances fuel combustion, which tends to be less efficient in cold weather. The oxygen also helps to offset fuel-rich operating conditions, particularly during vehicle starting, which are more prevalent in the winter. By adding oxygenates to gasoline, exhaust emissions of carbon monoxide are reduced. A gasoline blend containing 2.7 percent (%) oxygen by weight will result in a 15% to 20% reduction in CO emissions.

Section 211(m) of the Clean Air Act, 42 U.S.C. § 7401 et seq. (the Act) requires that states with carbon monoxide nonattainment areas with design values of 9.5 parts per million (ppm) or more, based on data for the two year period of 1988 and 1989 or any two year period after 1989, submit revisions to their State Implementation Plan (SIP) which establish oxygenated gasoline programs. These programs were to begin no later than November 1, 1992.

The oxygenated gasoline programs must require gasoline in the specified control areas to contain not less than 2.7% oxygen by weight (known as a per-gallon program), except that states may adopt an averaging program employing marketable oxygen credits. Where an averaging program is adopted, gasoline containing oxygen above 2.7% by weight may offset the sale of gasoline with a oxygen content below 2.7% by weight.

The minimum 2.7% standard shall apply during that portion of the year in which the areas are prone to high ambient concentrations of CO. The Act requires that the oxygenated gasoline program apply to all gasoline sold or dispensed in the larger of the Consolidated Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical Area (MSA) in which the nonattainment area is located.

EPA determined that the 1988 and 1989 monitoring data for the Metropolitan Washington area was invalid because of poor data quality and, therefore, inadequate to properly characterize the ambient concentrations of CO. Therefore, data from 1987 and 1988 was used and the Metropolitan Washington area was designated as a CO nonattainment area with a design value of 11.4 ppm. The District of Columbia (the District) is part of the Metropolitan Washington area CO nonattainment area. Consequently, as per the requirements of section 211(m) of the Act, an oxygenated gasoline program was required to be implemented in the District's portion of the Washington, DC. MSA.

On October 27, 1993, the District officially submitted to EPA a revision to its SIP for an oxygenated gasoline program. The District's oxygenated gasoline regulations, located at 20 District of Columbia Municipal Regulations (DCMR) Chapter 1, Section 199; Chapter 5, Section 500 and 502 and Chapter 9, Section 904, required the implementation of a program to be implemented on a per gallon basis. EPA granted limited approval/limited disapproval of these regulations as a SIP revision on January 26, 1995 (60 FR 5134).

On October 12, 1995, the District submitted a redesignation request and maintenance plan for its portion of the Metropolitan Washington area CO nonattainment area. In its demonstration of maintenance, the District showed that its oxygenated gasoline program was not necessary for attainment and continued maintenance of the CO national ambient air quality standards (NAAQS). The oxygenated gasoline program was relegated to a contingency measure in the maintenance plan. If the redesignated area violates the CO standard then the oxygenated gasoline program would be reinstated at the beginning of the next oxygenated gasoline control period. EPA approved the redesignation request and maintenance plan on January 30, 1996 (61 FR 2931).

The District was required to adopt and submit to EPA a revision to their oxygenated gasoline regulation which: (1) required the use of the oxygenated gasoline program as a contingency measure if the redesignated area violates the CO standard and (2) corrected the deficiencies in the regulations previously identified by EPA in the January 26, 1995 rulemaking (60 FR 5134).

On July 3, 1997, the District amended its oxygenated gasoline regulations to reflect the requirements of the federally approved CO maintenance plan. The regulation revision requires the implementation of the oxygenated gasoline program in the District if there are two or more exceedances of the of NAAQS for CO in a calendar year. The regulation states that the oxygenated gasoline program will not commence until at least 180 days after the Mayor determines that the contingency measure has been triggered.

On October 17, 1997, the District submitted the July 3, 1997 amended oxygenated gasoline regulations as a formal revision to its SIP. The revisions to the oxygenated gasoline regulation are found at 20 DCMR, Chapter 9 (Motor Vehicle Pollutants, Lead, Odors, and Nuisance Pollutants), Section 904, new subsection 904.3. These regulatory revisions became effective on July 25, 1997. On October 26, 2000 and December 8, 2000, the District of Columbia supplemented the October 17, 1997 SIP submittal. The supplements contain revisions to 20 DCMR at subsections 199.1 and 502.18. These revisions correct the deficiencies identified in EPA's January 26, 1995 limited approval/limited disapproval rulemaking (60 FR 5134). These regulatory revisions were adopted by the District of Columbia on October 26, 2000 and became effective on December 8, 2000.

The October 17, 1997 SIP submittal and its October 26 and December 8, 2000 SIP supplements are the subject of this action. A more detailed analysis of the District's submittal is contained in a Technical Support Document (TSD) which is available from the Region III office listed in the ADDRESSES section of this notice.

As previously stated, on January 26, 1995 (60 FR 5134), EPA published a final rule granting limited approval/limited disapproval of the District's oxygenated gasoline regulation found in 20 DCMR Sections 199, 500.4, 500.5, 502.18, 904.1, 904.2. EPA identified three things lacking in the District's regulation, namely, a definition for the term “carrier”, a sampling procedure, and a procedure for the calculation of oxygen content in the gasoline sampled. The October 26, 2000 and December 8, 2000 SIP supplements correct the three deficiencies. The three deficiencies and EPA's evaluation of the corrections is provided below.

1. The regulation lacks a definition for the term “carrier'.

EPA Evaluation —A definition for the term “carrier” had been added to Subsection 199.1 of 20 DCMR. This definition is acceptable and corrects the deficiency.

2. The regulation lacks a sampling procedure.

EPA Evaluation —EPA's sampling procedures are detailed in Appendix D of 40 CFR Part 80. EPA has recommended that states adopt these sampling procedures. The District has revised 20 DCMR Subsection 502.18 to require the use of the sampling methodologies set forth at 40 CFR Part 80, Appendix D or other methods approved by EPA. This deficiency has been corrected.

3. The regulation lacks a procedure for the calculation of oxygen content in the gasoline sampled.

EPA Evaluation —The District has revised 20 DCMR Subsection 502.18 to require the use of procedures for the calculation of oxygenated content in the gasoline found in the EPA guidance document entitled “Guidelines for Oxygenated Gasoline Credit Programs under Section 211(m) of the Clean Air Act as Amended,” which was made available in the Federal Register on October 20, 1992 (57 FR 47853), or other methods developed or approved by EPA. This corrects the deficiency.

This SIP revision also relegates the oxygenated gasoline program to a contingency measure, only to be implemented if there are two or more exceedances of the NAAQS for CO in a calendar year at any monitor located in the Metropolitan Washington, DC MSA. This regulation change, found at Subsection 904.3 of 20 DCMR, conforms with the District of Columbia's CO maintenance plan which was approved by the EPA as a SIP revision on January 30, 1996 (61 FR 2931). The regulation states that the oxygenated gasoline program will not commence until at least 180 days after the Mayor determines that the contingency measure has been triggered.

EPA is approving the revisions to 20 DCMR which relegate the oxygenated gasoline program to a contingency measure, only to be implemented if there are two or more exceedances of the NAAQS for CO in a calendar year at any monitor located in the Metropolitan Washington, DC MSA. The District's revision also makes technical amendments to the oxygenated gasoline regulations which correct the deficiencies previously identified in EPA's January 26, 1995 limited approval/limited disapproval rulemaking. Therefore, the January 26, 1995 limited approval/limited disapproval is hereby being converted to a full approval. EPA is approving this revision in accordance with the requirements of the Clean Air Act.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on July 9, 2001 without further notice unless EPA receives adverse comment by June 8, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 9, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action granting full approval of the District of Columbia's oxygenated gasoline regulation and relegating it to be a contingency measure of its CO maintenance plan may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On March 30, 1999, the Commonwealth of Kentucky submitted, through the Natural Resources and Environmental Protection Cabinet, a source-specific revision to the Kentucky SIP. This source-specific SIP revision allows American Greetings Corporation to have an alternative averaging period of 30 days for compliance determination.

To meet the requirements of this SIP revision, American Greetings Corporation must provide all record keeping in accordance with regulation 401 KAR 59:212, New Graphic Arts Facilities Using Rotogravure and Flexography, Section 4(6). These records shall include, but are not limited to, the following:

(a) Applicable regulation number;

(b) Application method and substrate type;

(c) Amount and type of graphic arts material or solvent used at each point of application, including exempt compounds;

(d) The volatile organic compound (VOC) content as applied in each graphic arts materials or solvent;

(e) The date for each application for graphic arts material or solvent; and

(f) The amount of surface preparation, clean-up, or wash-up solvent (including exempt compounds) used and the VOC content of each;

In addition, the permittee must keep monthly records of the pounds of each ink and topcoat lacquer used and the corresponding VOC contents and hours of operation. These emissions shall be calculated and recorded in tons per month and tons per 12 months. Tons per 12 months shall represent a rolling average. These records shall be made available for inspection to any authorized representative of the Division for Air Quality upon request.

Agency policy regarding SIP revisions for averaging times for compliance with VOC emission limits is stated in a January 20, 1984, memo from John R. O'Conner, Acting Director, Office of Air Quality Planning and Standards: “Current Agency guidance specifies the use of a daily weighted average for VOC regulations as the preferred alternative where continuous compliance is not feasible.”

The aforementioned memo also approves the utilization of averaging period for VOC emissions for as long as thirty days, providing that certain conditions are met.

These requirements consist of the following elements.

1. The VOC limits must be specified in an enforceable form with appropriate compliance dates.

2. A description of the affected processes and associated historical production and operating rates.

3. A description of the control techniques to be applied to the affected processes such as low solvent and waterborne coating; technology and/or add-on controls.

4. The nature of the emission control program whether a bubble, a regulation change, a compliance schedule, or some other form of alternative control program.

5. The method of record keeping and reporting to be employed to demonstrate compliance with the new emission limit requirement and to support the showing that the emission limit is consistent with Reasonable Further Progress (RFP) and the demonstration of attainment.

In response to meeting the aforementioned requirements, Kentucky submitted the results of a detailed statistical analysis verifying that the actual emissions emitted are consistently below the allowable emissions. Based on this analysis, Kentucky utilizing a monthly averaging recording system has a very minimal chance that the emissions will exceed ten percent of the permitted emission rate.

Kentucky's submittal addressed the NAAQS for ozone in the Appalachian Air Quality Control Region where the facility is located. Kentucky found that there were no violations of the ozone NAAQS during 1992-1995, based on an evaluation of the 1996-1997 Kentucky Environmental Quality Commission's Environmental Annual Status Report on Air Quality. EPA's review of additional ozone data in the Aerometric Information Retrieval System (AIRS) for the surrounding counties of Bell, Perry, and Pulaski for the years 1992-2000 found no ozone violations. Based on the air quality analysis by Kentucky and EPA's review of additional ozone air quality data, EPA concludes there will be no adverse environmental impact on the surrounding ozone attainment area from the adoption of 30-day monthly VOC record keeping for the American Greetings Corporation.

The use of thirty day averaging period as a maximum averaging time for VOC emissions is consistent with current agency policy, as detailed in the January 20, 1984, John O'Conner memo. Because of the simplicity of this action, no technical support document was prepared.

EPA is approving the aforementioned changes to the SIP because they are consistent with the Clean Air Act and EPA requirements. The requirements for averaging time frames for sources of ozone precursors can be found in the January 20, 1984, memo by John R. O'Conner. EPA believes that approving this source-specific SIP revision will create no adverse effects in the surrounding attainment area based on the ozone air quality data from the surrounding monitoring sites.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective July 9, 2001 without further notice unless the Agency receives relevant adverse comments by June 8, 2001.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on July 9 2001 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

Nothing in this action should be construed as making any determination or expressing any position regarding Kentucky's, audit privilege and penalty immunity law, “KRS 224.01-040” or its impact upon any approved provision in the SIP, including the revision at issue here. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any other Clean Air Act program resulting from the effect of Kentucky's audit privilege and immunity law. A state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities. EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by a state audit privilege or immunity law.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 9, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The development and implementation of on-site treatment would be piloted at Autoliv's Promontory, Utah facility using the existing metals recovery furnace with air pollution controls instead of sending the materials off-site to be open burned. This pilot is intended to test the effectiveness of on-site treatment of automobile airbag waste pyrotechnics in Autoliv's Metals Recovery Furnace (MRF). These automobile airbag waste pyrotechnics generated on-site at the Autoliv facility, are currently regulated as reactive hazardous wastes (waste code D003).

The pilot will determine whether this approach promotes better treatment of the waste pyrotechnics than the current method of open burning. Autoliv will comply with many of the general facility standards of RCRA, and is not seeking relief from all RCRA management protections. Through this project, Autoliv intends to be able to treat waste pyrotechnics, generated on-site, without obtaining a RCRA permit from the state of Utah. A RCRA permit is normally required for thermal destruction of hazardous waste in an industrial furnace. The waste as referenced in Autoliv's Project Proposal is reactive only and does not contain significant amounts of hazardous constituents listed in 40 CFR Part 261, for more detailed information on waste composition please see http://www.epa.gov/projectxl/Autoliv/page2.htm.

Today's action provides a “conditional exemption” from the definition of hazardous waste, for the specific waste that is subject to this site-specific rule. The effect of EPA granting the conditional exemption is that a RCRA permit is not required in this specific instance. The waste pyrotechnics, generated on-site at the Autoliv facility, are now conditionally exempted from regulation as hazardous wastes and thus, 40 CFR Parts 262 through 270 when treated in the MRF in accordance with the provisions in this site-specific rule. The facility will continue to comply with certain general RCRA conditions on facility operations, as described in this site-specific rule for the Autoliv Facility and any state of Utah regulations that grant the conditional exemption. The project signatories believe that processing pyrotechnic materials in the MRF can be both cost-effective and achieve superior environmental results as compared to open burning and this project meets the intent of Project XL. This rule will not in any way impact the provisions or applicability of any other existing or future regulations.

The deferral of specified RCRA requirements is in effect only for the five-year term of this XL project. Following review of its MRF, Autoliv would notify the state of Utah and EPA in writing of the date on which it intends to begin treating its pyrotechnic waste in the MRF. This rule would become effective in Autoliv's facility only after such written notification. Section III.C.2. and IV.F.1. discuss the aspects of state implementation of this rule.

The deferral of the specified RCRA requirements is conditional upon Autoliv's implementation and compliance with the conditions set forth in 40 CFR 261.4 of this rule. The agreement includes specific requirements for the management of Autoliv's waste that ensure protection of human health and the environment while providing some flexibility to encourage chemical reuse and waste minimization.

The conditions set forth in this rule are expected to function as an outline of the procedures that must be in place to manage waste. The deferral of the hazardous waste determination is conditional on compliance with all of the requirements of the XL Project. These criteria ensure that the handling and disposal of Autoliv's waste would be protective of human health and the environment by establishing how Autoliv's waste would be treated within its Promontory facility, and in transit to the on-site waste accumulation area for Autoliv.

EPA has agreed to allow Autoliv to undertake this XL project with the requested regulatory flexibility to determine if the performance-based approach would result in superior environmental performance and significant cost savings to Autoliv.

This rule, and the state actions described in Section IV.F.1. of this preamble that parallel this action, will not in any way affect the provisions or applicability of any other existing or future regulations. The XL Project will enter the implementation phase after the initial stack test results have been submitted by Autoliv and reviewed by both EPA and the state of Utah to ensure adherence to the XL Project.

The information presented in this preamble is organized as follows:

EPA is publishing this site specific rule under the authority of sections of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act (RCRA).

Project XL—“eXcellence and Leadership”—was announced on March 16, 1995, as a central part of the National Performance Review and the EPA's effort to reinvent environmental protection. See 60 FR 27282 (May 23, 1995). Project XL provides a limited number of private and public regulated entities an opportunity to develop their own pilot projects to provide regulatory flexibility that will result in environmental protection that is superior to what would be achieved through compliance with current and reasonably anticipated future regulations. These efforts are crucial to EPA's ability to test new strategies that reduce regulatory burden and promote economic growth while achieving better environmental and public health protection. EPA intends to evaluate the results of this and other Project XL projects to determine which specific elements of the project(s), if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Under Project XL, participants in four categories; facilities, industry sectors, governmental agencies and communities are offered the flexibility to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements, on the condition that they produce and demonstrate superior environmental performance.

The XL program is intended to allow EPA to experiment with potentially promising regulatory approaches, both to assess whether they provide benefits at the specific facility affected, and whether they should be considered for wider application. Such pilot projects allow EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. As part of this experimentation, the EPA may try out approaches or legal interpretations that depart from or are even inconsistent with longstanding Agency practice, so long as those interpretations are within the broad range of discretion enjoyed by the Agency in interpreting statutes that it implements. The EPA may also modify rules, on a site-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute.

Adoption of such alternative approaches or interpretations in the context of a given XL project does not, however, signal EPA's willingness to adopt that interpretation as a general matter, or even in the context of other XL projects. It would be inconsistent with the forward-looking nature of these pilot projects to adopt such innovative approaches prematurely on a widespread basis without first determining whether or not they are viable in practice and successful in the particular projects that embody them. In announcing the XL program, EPA expects to adopt only a limited number of carefully selected projects. These pilot projects are not intended to be a means for piecemeal revision of entire programs. Depending on the results in these projects, EPA may or may not be willing to consider adopting the alternative interpretation again, either generally or for other specific facilities.

EPA believes that adopting alternative policy approaches and interpretations, on a limited, site-specific basis and in connection with a carefully selected pilot project, is consistent with the expectations of Congress about EPA's role in implementing the environmental statutes (provided that the Agency acts within the discretion allowed by the statute). Congress' recognition that there is a need for experimentation and research, as well as ongoing reevaluation of environmental programs, is reflected in a variety of statutory provisions, such as section 8001 of RCRA.

To participate in Project XL, applicants must develop alternative pollution reduction strategies pursuant to eight criteria: Superior environmental performance; cost savings and paperwork reduction; local stakeholder involvement and support; test of an innovative strategy; transferability; feasibility; identification of monitoring, reporting and evaluation methods; and avoidance of shifting risk burden. They must have full support of affected federal, state and tribal agencies to be selected.

For more information about the XL criteria, readers should refer to the two descriptive documents published in the Federal Register (60 FR 27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 1, 1995 Principles for Development of Project XL Final Project Agreements document. For further discussion as to how Autoliv XL project addresses the XL criteria, readers should refer to the Final Project Agreement available from the EPA RCRA docket or Region 8 library for this action (see ADDRESSES section of today's preamble).

The Project XL program is compartmentalized into four basic phases: the initial pre-proposal phase where the project sponsor comes up with an innovative concept that they would like to consider as an XL pilot, the second phase where the project sponsor works with EPA and interested stakeholders in developing an XL proposal, the third phase where EPA, local regulatory agencies, and other interested stakeholders review the XL proposal, the fourth phase where the project sponsor works with EPA, local regulatory agencies, and interested stakeholders in developing a Final Project Agreement (FPA) and legal mechanism. After the FPA has been signed by all designated parties, the XL pilot proceeds into the implementation phase and evaluation phase.

The FPA is a written agreement between the project sponsor and regulatory agencies. The FPA contains a detailed description of the pilot project. It addresses the eight Project XL criteria, and the expectation of the Agency that this XL project will meet those criteria. The FPA identifies performance goals and indicators (monitoring schedule) which will enable Autoliv to clearly illustrate the baseline quantities. The FPA specifically addresses the manner in which the project is expected to produce superior environmental benefits. The FPA also discusses the administration of the agreement, including dispute resolution and termination. The FPA is available for review in the docket for today's action, and also is available on the world wide web at http://www.epa.gov/projectxl/.

Autoliv is proposing to develop, evaluate and implement, an alternative to open burning of certain wastes generated at its Promontory, Utah facility.

This waste is reactive only, and contains no significant levels of hazardous constituents. These reactive hazardous wastes are presently treated through open burning at a RCRA interim status facility.

Autoliv currently operates a $3 million Metals Recovery Facility (MRF) designed to recover aluminum and steel from inflator units containing live pyrotechnic material as well as previously fired units. The MRF is capable of recovering 2000 pounds per hour of recyclable aluminum and steel from off-spec and fired commercial inflator units and their components while minimizing the waste to the environment. Autoliv's XL Project proposes to process small volumes of its waste pyrotechnic materials within the MRF rather than sending the materials to a RCRA regulated treatment, storage or disposal facility (TSDF) for open burning. The company is seeking a conditional exemption from the definition of hazardous waste for pyrotechnic materials to be processed through the MRF.

The MRF has an extensive air pollution train which is capable of capturing the particulate emissions produced by the waste pyrotechnic materials. This project will demonstrate that it is feasible to utilize existing equipment to process certain hazardous wastes in a more efficient and environmentally sound manner, under a more flexible regulatory framework. With minimal modifications to the operation, Autoliv believes that it can achieve a safer, cleaner, and more effective method of treatment than the current method of open burning.

EPA anticipates that this project will provide information on how to develop alternative approaches to handling pyrotechnic waste. This information will be useful to EPA in learning more about alternative treatment approaches for airbag manufacturing wastestreams. This XL Project would include conditions for the treatment of Autoliv's wastes within Autoliv's Promontory Facility. These criteria will operate at Autoliv's Promontory facility in lieu of the requirements found at 40 CFR 261.4. The conditions are a set of measurable requirements that are similar to the current RCRA requirements. Each of the elements of the conditions is described in full in today's rule and is briefly explained below.

The requirements for Autoliv's XL Project include a requirement that the project include procedures to assure compliance with conditions specified in the rule. The conditions set forth for the treatment of Autoliv's waste have been designed to ensure that Autoliv's waste will be treated in a manner protective of human health and the environment. The requirements in the conditions include provisions which are consistent with current RCRA requirements. Autoliv is proposing that EPA explore the benefits of more streamlined and flexible RCRA regulation of pyrotechnic hazardous wastes from the automobile airbag industry that are treated in industrial furnaces. The project signatories agree that this rule can be characterized as a conditional exemption from the definition of hazardous waste.

Autoliv will comply with many of the general facility standards of RCRA, and is not seeking relief from all RCRA management protections. Through this project Autoliv intends to be able to treat its waste pyrotechnic materials on-site without obtaining a RCRA Part B permit from the State of Utah that is normally required for thermal treatment. The waste as referenced in Autoliv's Project Proposal is reactive only and does not contain significant amounts of hazardous constituents (See the Environmental Performance Summary Calculations section of the Autoliv Proposal at http://www.epa.gov/projectxl/Autoliv/page2.htm. for more detailed information on waste composition).

This site specific rule would apply only to the Autoliv ASP Inc. (Autoliv) facility in Promontory, Utah.

This project is designed to achieve environmental results that are superior to what is currently achieved by the current RCRA regulatory system.

This project is expected to achieve superior environmental results as compared to open burning for several reasons. The major benefit to the environment will be from reduced air emissions due to the minimization of open burning of hazardous waste. The company has arranged for open burning of 183,557 lbs. of pyrotechnic material that were not able to be recovered or recycled during 1998 and 1999. The uncontrolled particulate emissions are a point of concern for all parties involved. Although open burning is an approved method for treatment of pyrotechnic wastes it does not utilize any air pollution controls. The same pyrotechnic materials, if processed at the MRF, would pass through an extensive air pollution control system rather than being emitted, thus achieving a significant reduction of air pollutants released to the environment, accomplishing superior environmental performance compared to open burning. The company projects that it can eliminate open burning of 158,000 lbs. of pyrotechnic waste material in the first year of project participation. It also estimates that a net reduction of 22,876 lbs./yr. of particulate emissions would be accomplished.

Additional environmental benefits are achievable due to the fact that certain pyrotechnic formulations contain materials (e.g., copper) that could be potentially recovered in the slag as well as in the baghouse. These materials could then be recycled back to Autoliv's raw material suppliers. The distinctive properties of the pyrotechnic materials enable these materials to be treated more efficiently and in a manner that creates few air emissions than open burning which precludes recycling or recovery of any kind.

The specifications governing the air bag industry are very stringent and do not allow the use of toxic materials. The major gases produced by gas generants are water, carbon dioxide, and nitrogen. The percentage of each of these gases can vary depending on the formulation but a typical analysis would be approximately 40% nitrogen, 40% water, and 20% carbon dioxide. Other gaseous and particulate (metal) compounds are present at ppm levels. These include gaseous carbon dioxide (CO), nitrogen dioxide (NO2), nitric oxide (NO), and ammonia (NH3), and particulate matter containing the metals copper, cobalt, boron, and aluminum. The MRF is presently permitted by Utah (DAQE-549-97) to operate 24 hours/day, 365 days/year. Actual operation is estimated to be 50 percent of the permitted production capacity. A portion of the processing capacity will be absorbed by pyrotechnic waste material. Minimal changes to the emission streams are expected because the pyrotechnic materials are also present within the recycled inflator units themselves.

This site specific rule provides Autoliv with a temporary conditional exemption from 40 CFR 261.4. In order to implement this project, EPA will grant a conditional exemption from the definition of hazardous waste, for the specific waste that is subject to this rule.

The effect of EPA granting the conditional exemption is that a RCRA Part B permit is not required. The waste pyrotechnics, generated on-site at the Autoliv facility, are now exempted from regulation as a hazardous waste exempt from 40 CFR Parts 262 through 270 when treated in the MRF in accordance with the provisions in the site-specific rule. The facility will continue to comply with certain general RCRA conditions on facility operations, as described in this Project XL site-specific rule for the Autoliv facility and any State of Utah regulations that grant the conditional exemption. The project signatories believe that processing pyrotechnic materials in the MRF can be both cost-effective and achieve superior environmental results as compared to open burning.

This site-specific rule is necessary to allow for the temporary conditional exemption/deferral, and would add exclusion (b)(18) to 40 CFR 261.4 to clarify that the on-site treatment of Autoliv's wastes would be covered by a new section to 40 CFR.

The State of Utah is authorized under Section 3003 of RCRA (Sec. 6926. Authorized State Hazardous Waste Programs), to implement the federal RCRA Program. The state program operates in lieu of the federal program. The Utah hazardous waste management regulations, codified in Utah Code of Regulations contain equivalent or more stringent requirements as compared to the federal regulations. Autoliv is subject to the federal and the Utah regulations, which would include requirements that the pyrotechnic waste be handled according to the waste management provisions of RCRA. Conforming state regulatory changes or legal mechanisms need to be implemented in addition to the federal changes in order for this XL Project to proceed.

EPA is supporting this regulatory model contained in this rule because it provides for a degree of environmental protection that is at least as protective as that which existing RCRA regulations would provide for the Autoliv's Promontory facility. The approach to be tested under this project would be to explore the efficacy of treating waste on-site in cases where there is a clear benefit to the environment for doing so. This would entail the substitution of current RCRA permitting requirements outlined in 40 CFR Parts 264 and 266 with those for interim status facilities. EPA is interested in testing and evaluating alternative approaches to regulating RCRA facilities that can achieve superior environmental performance while reducing costs and paperwork burden. Autoliv has a history of implementing waste minimization techniques and practices with control over manufacturing with emphasis on quality and waste minimization. Providing Autoliv the flexibility to dispose of waste on a regular schedule means professional resources can be redirected from reactive waste management to proactive waste management. EPA anticipates that this rule will result in a successful innovative pilot of a new on-site treatment system for Autoliv. EPA recognizes that the new systems may not be appropriate or necessary for some institutions but may, at some point, depending on the results of this XL project, consider the possibility of offering it as a regulatory option. For this pilot, Autoliv will be implementing an Environmental Reinvestment Project (ERP) that will be finalized one year from the project start date.

Stakeholder involvement during the project development stage was encouraged in several ways. The methods included communicating through the media, directly contacting interested parties and offering an educational program regarding the regulatory requirements impacted by the XL project. Stakeholders have been kept informed on the project status via mailing lists, newspaper articles, public meetings and the establishment of a website. Both local and regional stakeholders have expressed support for this project. They see this as a unique opportunity to improve the air quality in Box Elder County and surrounding communities. Participation in Project XL provides Autoliv, the Box Elder County, the Utah Division of Environmental Quality and the EPA the opportunity to explore new ways to improve the environment. The neighboring community of Howell and the surrounding area would benefit by reducing emissions associated with open burning. The highly visible nature of open burning tends to heighten awareness of the associated environmental impacts. A kickoff meeting and site tour held on June 8th, 1999 garnered stakeholder support and input for the project plan. Additional stakeholder meetings will be held as appropriate. Stakeholders that have been active in the project and have given oral or written support are: Utah Division of Environmental Quality, Bear River Health Department, Howell City, and Box Elder County. Stakeholders have been made aware of Autoliv's intentions and the environmental benefits associated with Project XL. Autoliv will continue to provide the stakeholder group with any information regarding the project including semi-annual project updates and will encourage them to meet on a regular basis. Copies of all comment letters, as well as EPA's response to comment letters, will be located in the rulemaking Docket (see the ADDRESSES section of today's preamble). As this XL project continues to be implemented, the stakeholder involvement program would shift its focus to ensure that: (1) Stakeholders are informed of the status of project implementation and (2) stakeholders have access to information sufficient to judge the success of this Project XL initiative. Anticipated stakeholder involvement during the term of the project will likely include other general public meetings to present periodic status reports, availability of data and other information generated. In addition to the state and federal reporting requirements of today's rulemaking, the FPA includes provisions whereby Autoliv will make copies of interim project reports available to all interested parties. A public file on this XL project has been maintained at the website http://www.epa.gov/projectxl/ throughout project development, and Autoliv has committed to continue to update it as the project is implemented. A detailed description of this program and the stakeholder support for this project is included in the FPA, which is available through the docket or through EPA's Project XL site on the Internet (see ADDRESSES section of this preamble).

The waste treatment currently accounts for the most substantial expense for environmental, health and safety programs at Autoliv. This XL Project would result in cost savings and paperwork reduction in several key areas. These include a decrease in paperwork through a streamlined process for approval of hazardous waste treatment, elimination of paperwork related to transporting the waste off-site to a permitted facility, and a reduction in the disposal costs that the company would pay to a RCRA treatment or disposal facility. Autoliv disposed of 82,361 lbs. of pyrotechnic waste in 1998 at an incurred cost of $164,722. The pyrotechnic waste could easily have been processed in the MRF with minimal additional operating cost. Autoliv estimates that 158,000 lbs. of waste material were generated in the year 2000. The contracted disposal fee at present time is $2.00 per pound. Through Project XL, Autoliv will save an estimated $316,000 in disposal costs in the first year. It has been estimated that issuance of a RCRA permit may take three to five years and may cost the facility $500,000. Part of Autoliv's cost savings from the XL project will be used to fund an ERP. In addition, the following changes would be anticipated: waste pyrotechnics would no longer be transported across public roads, reducing potential liability and associated costs, and increasing public safety. The paperwork burden would be reduced because hazardous waste manifests and shipping papers would not be required or needed. Operational flexibility would allow materials to be processed more regularly, which further reduces paperwork as well as the amount of pyrotechnics stored at any given time. It is expected with this project a certain amount of paperwork associated with RCRA compliance is likely to be reduced.

EPA retains its full range of enforcement options under this Site Specific rule. The conditional exemption of certain RCRA requirements are conditional upon Autoliv's implementation and compliance with the conditions set forth in 40 CFR 261.4 of this rule (b)(18). If the conditions for the exemption are not met, the XL project may be terminated pursuant to the terms of the Final Project Agreement setting out the agreement of the parties to this project. The final project agreement further provides for a return to compliance with any regulations deferred under the project, and may include an agreed-upon interim compliance period. As with all XL projects, testing alternative environmental protection strategies, the term of the Autoliv XL project is one of limited duration. This Site Specific rule would set the term of the XL Project at five years after the effective date of this rule. Because Project XL is a voluntary and experimental program, the FPA contains provisions that allow the project to conclude prior to the end of the five years in the event that it is desirable or necessary to do so.

During the five year project term, Autoliv will comply with the following:

(1) Autoliv will comply with the Project XL site-specific rule for the Promontory facility and the requirements specified in 40 CFR Part 262, Part 265, Subparts B, C, D, E, G, H, I, and O, and Part 268. Waste material will still be managed and stored as hazardous waste prior to treatment. Autoliv will comply with the RCRA 90-day storage requirements.

(2) All waste materials processed will be characterized and an initial stack test described in the site-specific rule will be conducted by Autoliv to evaluate the safety and the efficiency of the MRF system.

(3) The amounts of pyrotechnic wastes will be reported to EPA and the State of Utah at each periodic performance review conference conducted every six months.

(4) Due to the dynamic and ever changing nature of the air bag industry, it will be pertinent to allow for new development and provide flexibility for future materials. Emission product limitations will comply with air bag industry emissions standards listed in the Superior Environmental Performance section.

(5) The Utah Division of Air Quality under authority delegated by EPA has agreed that a separate Approval Order will be issued for the pyrotechnic waste disposal process which will serve as an amendment to the existing Approval Order which covers the current operation of processing airbag inflators and their components. No regulatory flexibility or modification of federal regulations is required for the new approval order to be issued by the Division of Air Quality.

(6) No off-site pyrotechnic wastes will be received or processed at this location and in the MRF.

(7) An MRF Operating Record, including waste feed composition, feed rates, temperatures, pressures, upset conditions, spills and releases, etc., will be maintained at the facility and made available for the State of Utah and EPA to review and copy for enforcement purposes if necessary.

(8) The State of Utah and EPA will be notified of any upset conditions, such as, spills and releases of hazardous or toxic substances at the MRF. The information will be reported orally within 24 hours from the time Autoliv becomes aware of the circumstances. A written submission to the State of Utah and EPA will be provided within five days of the time Autoliv becomes aware of the circumstances of the noncompliance. The severity and type of upset condition that would trigger the reporting threshold is described in the site-specific rule.

A public hearing will be held, if requested, to provide opportunity for interested persons to make oral presentations regarding this regulation in accordance with 40 CFR Part 25. Persons wishing to make an oral presentation on the site specific rule to implement the Autoliv XL Project should contact Ms. Mary Byrne of the EPA Region 8 office, at the address given in the ADDRESSES section of this document. Any member of the public may file a written statement before the hearing, or after the hearing, to be received by EPA no later than February 27, 2001.

Written statements should be sent to EPA at the addresses given in the ADDRESSES section of this document. If a public hearing is held, a verbatim transcript of the hearing, and written statements provided at the hearing will be available for inspection and copying during normal business hours at the EPA addresses for docket inspection given in the ADDRESSES section of this preamble.

This is a rule of particular applicability and therefore not within the scope of EO 12866.

The Regulatory Flexibility Act (RFA), 5 U.S.C. section 601 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because it only affects Autoliv. Therefore, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities.

This action applies only to Autoliv, and therefore requires no information collection activities subject to the Paperwork Reduction Act, and therefore no information collection request (ICR) will be submitted to OMB for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

As noted above, this rule is applicable only to the Autoliv facility in Promontory, Utah. The EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. EPA has also determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Under section 3006 of RCRA, EPA may authorize qualified states to administer and enforce the RCRA program for hazardous waste within the state. (See 40 CFR Part 271 for the standards and requirements for authorization.) States with final authorization administer their own hazardous waste programs in lieu of the federal program. Following authorization, EPA retains enforcement authority under sections 3008, 3013 and 7003 of RCRA.

After authorization, federal rules written under RCRA (non-HSWA), no longer apply in the authorized state except for those issued pursuant to the Hazardous and Solid Waste Act Amendments of 1984 (HSWA). New federal requirements imposed by those rules do not take effect in an authorized state until the state adopts the requirements as state law.

In contrast, under section 3006(g) of RCRA, new requirements and prohibitions imposed by HSWA take effect in authorized states at the same time they take effect in non authorized states. EPA is directed to carry out HSWA requirements and prohibitions in authorized states until the state is granted authorization to do so.

2. Effect on Utah Authorization

This rule is being promulgated pursuant to non-HSWA authority, rather than HSWA. Utah has received authority to administer most of the RCRA program; thus, authorized provisions of each state's hazardous waste program are administered in lieu of the federal program. Utah has received authority to administer hazardous waste standards for generators. As a result, this rule, would not be effective in Utah until the state adopts equivalent legal mechanisms or requirements as state law. EPA may not enforce these requirements until it approves the state requirements as a revision to the authorized state program.

The Executive Order 13045, “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.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 and 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.”

The rule does not have federalism implications. It does not have substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of powers and responsibilities among various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It does not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. There are no communities of Indian tribal governments located in the vicinity of Autoliv. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standard. This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and the Comptroller General of the United States. Section 804, however, exempts from Section 801 the following types of rules: rules of particular applicability, rules relating to agency management or personnel, and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under Section 801 because this is a rule of particular applicability.

(A) An initial test shall be conducted within 30 operating days of starting feed of by-product gas generants to the MRF. EPA may extend this deadline, at the request of Autoliv, when good cause is shown. The initial test shall consist of three duplicate runs sampling for:

( 1 ) Particulate matter using Method 5 as specified in 40 CFR Part 60, Appendix A.

( 2 ) The metals Aluminum, Arsenic, Barium, Beryllium, Boron, Cadmium, Chromium, Cobalt, Copper, Lead, and Nickel using Method 29 as specified in 40 CFR Part 60, Appendix A.

( 3 ) Polychlorinated di-benzo dioxins and furans using Method 23 0023A as specified in 40 CFR Part 60, Appendix A.

( 4 ) Carbon monoxide using Method 10 as specified in 40 CFR Part 60, Appendix A.

(B) After the initial test is completed, an annual stack test (12 months from the previous initial stack test) of the MRF shall be conducted. The annual tests shall consist of three duplicate runs using Method 29 and Method 5 as specified in 40 CFR Part 60, Appendix A.

(C) Testing shall be conducted while by-product gas generants are fed to the MRF at no less than 90% of the planned maximum feed rate, and with the MRF operating parameters within normal ranges.

(D) Initial stack testing results and additional project performance data and information, including the quantity of by-product gas generants processed and the operating parameter values during the test runs, will be submitted by Autoliv to the State of Utah and EPA within 60 days of the completion of the initial stack test.

(E) Annual stack test results and additional project performance data and information, including the quantity of by-product gas generants processed and the operating parameter values during the test runs, will be submitted by Autoliv to EPA and the State of Utah within 60 days of the completion of the annual test.

(vi) Combustion gas discharged to the atmosphere from the MRF meets the following limits:

(A) Dioxin emissions do not exceed 0.4 ng per dry standard cubic meter on a toxicity equivalent quotient (TEQ) basis corrected to 7% Oxygen.

(B) Combined lead and cadmium emissions do not exceed 240 ug per dry standard cubic meter corrected to 7% Oxygen.

(C) Combined arsenic, beryllium, and chromium emissions do not exceed 97 ug per dry standard cubic meter corrected to 7% Oxygen.

(D) Particulate matter emissions do not exceed 34 mg per dry standard cubic meter corrected to 7% Oxygen.

(E) If the limits specified in paragraphs (b)(18)(vi)(A) through (D) of this section are exceeded, Autoliv shall discontinue feeding gas generants to the MRF until such time as Autoliv can demonstrate to EPA and the state of Utah satisfaction that the MRF combustion gas emissions can meet the limits specified in paragraphs (b)(18)(vi) (A) through (D) of this section

(vii) No by-product gas generants or other pyrotechnic wastes generated off-site will be received at the Autoliv facility in Promontory, Utah or processed in the MRF unless otherwise allowed by law (permit or regulation).

(viii) Autoliv will provide EPA and the state of Utah with semi-annual reports (by January 30 and July 30 of each year).

(A) The semi-annual reports will document the amounts of by-product gas generants processed during the reporting period.

(B) The semi-annual reports will provide a summary of the MRF Operating Record during the reporting period, including information on by-product gas generant composition, average feed rates, upset conditions, and spills or releases.

(ix) No significant changes are made to the operating parameter production values of Autoliv's production of air bag gas generants such that any of the constituents listed in appendix VIII of this part are introduced into the process.

(x) Autoliv reports to the EPA any noncompliance which may endanger health or the environment orally within 24 hours from the time Autoliv becomes aware of the circumstances, including:

(A) Any information of a release, discharge, fire, or explosion from the MRF, which could threaten the environment or human health.

(B) The description of the occurrence and its cause shall include:

( 1 ) Name, address, and telephone number of the facility;

( 2 ) Date, time, and type of incident;

( 3 ) Name and quantity of material(s) involved;

( 4 ) The extent of injuries, if any;

( 5 ) An assessment of actual or potential hazards to the environment and human health, and

( 6 ) Estimated quantity and disposition of recovered material that resulted from the incident.

(C) A written notice shall also be provided within five days of the time Autoliv becomes aware of the circumstances. The written notice shall contain a description of the non-compliance and its cause; the period of noncompliance including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. The EPA may waive the five day written notice requirement in favor of a written report within fifteen days.

(xi) Notifications and submissions made under paragraph (b)(18) of this section shall be sent to the Regional Assistant Administrator for the Office of Partnerships and Regulatory Assistance, U.S. EPA, Region 8 and the Executive Secretary of the Utah Solid and Hazardous Waste Control Board.

On December 21, 2000, the Commission adopted the Part 68 Streamlining Order which amended the Commission's rules governing the connection of terminal equipment to the public switched telephone network in an effort to privatize and streamline the standards development and approval processes; a summary of the order was published in the Federal Register . 66 FR 7579 (January 24, 2001). Some of the regulations adopted in that order included information collection that required approval from the Office of Management and Budget. The order explained that “[t]he collections of information contained within are contingent upon approval by the OMB. The Commission will publish a document at a later date establishing the effective date.” OMB approved the amendments to 47 CFR 68.106-68.610 that establish those reporting requirements. See OMB No. 3060-0056. Accordingly, these regulations will become effective upon publication of this document in the Federal Register . This document constitutes publication of the effective date of the regulations. We note that the information collection requirements in § 68.105, as adopted in the Part 68 Streamlining Order, were originally established in a separate proceeding as part of the definition of the term “demarcation point” in 47 CFR 68.3 (1999). 15 FCC Rcd 22983 (2000). Therefore, that rule will become effective upon OMB approval in the Competitive Networks proceeding.

NMFS implemented the FMP through regulations at 50 CFR part 648, subparts A and J. Section 648.160 requires annual specifications. The FMP, as adopted by the Mid-Atlantic Fishery Management Council (Council) requires that the Council recommend, on an annual basis, TAL, which is composed of a commercial quota and a recreational harvest limit. NMFS published a proposed rule to establish the 2001 bluefish specifications and insert an inadvertently omitted paragraph into § 648.160 at 66 FR 10983, February 21, 2001, with a comment period ending March 23, 2001.

The FMP requires that the TAL for any given year be set based on the fishing mortality rate (F) resulting from the stock rebuilding schedule contained in Amendment 1 to the FMP (F=0.41 for 2001) or on the estimated F for the fishing year preceding the Council submission of the recommended specifications, whichever F is lower. The 1999 bluefish fishery data were the most recent data that were complete when the specification process began for the 2001 bluefish fishery. Because the 1999 fishery produced an F of only 0.295 (equals a 33 percent exploitation rate for the bluefish fishery), the TAL is set to maintain this F in 2001. Therefore, the TAL for 2001 is 37.84 million lb (17.17 million kg), which equals 33 percent of the estimated biomass for 2001 (114.62 million lb (52.0 million kg). By basing the bluefish TAL for 2001 on an F value of 0.295, this action prevents overfishing of the Atlantic bluefish stock. According to the current overfishing definition fo this fish stock, F values less than 0.4 prevent overfishing.

The FMP requires that a total of 17 percent of the TAL be allocated to the commercial fishery, as a quota, with the remaining 83 percent allocated as a recreational harvest limit. This would result in a commercial allocation of 6.43 million lb (2.92 million kg) and a recreational harvest limit of 31.41 million lb (14.25 million kg). However, the FMP also specifies that if 17 percent of the TAL is less than 10.50 million lb (4.8 million kg) and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.50 million lb (4.8 million kg) as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed TAL.

Since recreational landings from 1995 through 1999 ranged between 8.3 and 14.7 million lb (3.76 and 6.67 million kg), well below the recreational harvest limit for 2001, the Council relied on the foregoing provision. This action establishes a commercial quota of 9.58 million lb (4.35 million kg) for 2001, which maintains the 2001 quota at the level specified in 2000 by the Atlantic States Marine Fisheries Commission. Under the FMP, this required transferring 3.15 million lb (1.43 million kg) from the initial 2001 recreational allocation of 31.41 million lb (14.25 million kg), leaving 28.26 million lb (12.82 million kg) for the 2001 recommended harvest limit. The 2001 commercial quotas are unchanged from the 2000 quotas implemented by the states under the Interstate Fishery Management Plan for Atlantic Bluefish, so no significant economic impacts are expected. The 2001 state commercial quotas are listed in the table below.

The Council made a 2-year projection of the bluefish stock biomass using an assumed F of 0.295. Results indicate that the bluefish stock will increase from an estimated biomass of 78,919,680 lb (35,840 mt) in 2000 to 114,481,980 lb (51,990 mt) in 2001, and 153,523,440 lb (69,720 mt) in the year 2002. The projection predicts the stock will increase substantially in the next 2 years, with commensurate increases in the recreational harvest limit. However, recreational landings have decreased from 14,302 mt (31,521,608 lb) in 1997 to 12,334 mt (27,184,136 lb) in 1998 and 8,253 mt (18,189,612 lb) in 1999. Therefore, NMFS is increasing the possession limit from 10 to 15 fish in 2001. NMFS expects this increase to benefit some recreational anglers without exceeding the recreational harvest limit of 28.26 million lb (12.82 million kg).

During rulemaking to implement Amendment 1 to the FMP, NMFS inadvertently omitted a portion of the regulatory text in § 648.160(a) necessary to specify the procedures for setting annual TAL. The regulatory text needs to reflect the FMP requirement, found in section 3.1.1.2 of Amendment 1, that the Council use the estimated F for the fishing year preceding the Council submission of the recommended specifications for setting TAL if the estimated F is less than the target F identified in the rebuilding schedule. NMFS approved the portion of Amendment 1 containing this requirement on July 29, 1999.

When publishing the proposed rule, NMFS mistakenly omitted the regulatory text in § 648.164 that specifies the bluefish possession limit. This final rule revises the regulatory text consistent with the increase in the possession limit from 10 fish per person to 15 fish per person.

No comments were received during the public comment period for the proposed rule.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant impact on a substantial number of small entities. The factual basis for that determination was provided in the proposed rule for this action. No comments were received regarding the economic effects of this action; accordingly, the factual basis for this certification has not changed. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act was not required and none was prepared.

The Assistant Administrator for Fisheries, NOAA, under 5 U.S.C. 553(d)(5), finds good cause not to delay the effective date of the 2001 fishery specifications contained in this final rule. This rule establishes only a commercial quota and recreational possession limits, which are used to control the harvest in this fishery, but establishes any requirements for which a regulatory entity must come into compliance. This fishery commenced on January 1, 2001. In addition, the increase in the recreational harvest limit from 10 to 15 fish relieves a restriction.