Permissive inspections, as authorized under the Tobacco Inspection Act (7 U.S.C. 511-511q), are made available to interested parties on a fee basis sufficient to cover the costs incurred by the Department for the inspection and certification, and other services, including administrative and supervisory costs. This rule revises the fee structure and increase fees for domestic permissive inspection and grading of tobacco.

The AMS conducts reviews of the financial status of this program to determine whether a fee is sufficient. As a result of this review, it has been determined that, at the current fees, insufficient revenue is generated to meet the costs of the program and to maintain an adequate reserve fund. The current hourly fee schedule for domestic permissive inspection has been in effect since October 1, 1991, as published in the Federal Register (56 FR 41921) on August 26, 1991. The major factors causing the need for additional funds are increases in Government salaries and benefits, travel allowances, and overall administrative costs since 1991. The crop-year 2000 revenues for permissive inspection and certification services at redrying plants were $213,000 and obligations were $300,000. Without a fee increase, crop-year 2001 and crop-year 2002 revenues for permissive inspection and certification services at redrying plants are projected at about $213,000 per year and obligations are projected at about $300,000 per year, and with a fee increase, crop-year 2001 and crop-year 2002 revenues are projected at $312,000 and obligations are projected at $300,000. This interim final rule will increase the hourly rates charged to users of domestic permissive inspection and certification services performed at redrying plants by about 46 percent. The AMS estimates that the increase in the hourly rate will yield about an additional $100,000 during crop-year 2001 and maintain an adequate reserve.

This rule also revises the fee structure for permissive inspection and certification at receiving points from an hourly basis to a poundage basis at the same rate as for mandatory inspection at auction. A poundage-basis structure is more appropriate for the permissive inspection of tobacco at receiving points. Although it is anticipated that 60-75 percent of the 2001 tobacco crop will be sold by direct contract, and that some of this will be permissively inspected at receiving points, it would be difficult to predict the number of pounds for which permissive inspection will be requested and the resulting revenues. However, based upon the experience of the AMS with mandatory inspection at auction, a fee of $.01 per pound is estimated to cover costs of $841,115 and an adequate reserve (assuming 120 million pounds of contract tobacco will be inspected in crop-year 2001 with revenue of $1,200,000). The costs to entities would be proportional to their use of the service so that costs are shared equitably by all interested parties.

In the past, virtually all quota tobacco was marketed through the auction system under the mandatory inspection program. Mandatory inspection, as required under the Act, takes precedence over other services and fees are assessed based on the pounds graded. AMS has maintained a core grading staff for mandatory inspection and utilized personnel from this staff to provide permissive grading. Other than recertification services performed at redrying plants, only a small amount of tobacco was inspected under the permissive grading program. Consequently, overhead costs and a reserve fund for permissive inspection were covered by the mandatory inspection fees.

However, tobacco marketing practices are changing. During the 2000 marketing year, tobacco companies implemented programs with producers to procure tobacco through direct contracting. Permissive grading services were requested for tobacco beginning in 2000. Tobacco companies also have indicated they will request increased permissive grading services for tobacco purchased directly from producers through contractual sales during the 2001 marketing year. It is anticipated that 60- 75 percent of the 2001 tobacco crop will be sold by contractual sales. With the projected increase in permissive grading requests from contractual tobacco sales, it is necessary for the permissive grading program to be self-supporting. The procedures for grading tobacco and the associated costs are virtually the same at both auction markets and receiving points. The National Advisory Committee for Tobacco Inspection Services, which is mandated by the Omnibus Budget Reconciliation Act of 1981, met on March 6, 2001, and unanimously recommended that the fee structure and rates for permissive inspection at receiving points be the same as for mandatory inspection at auction. Accordingly, the fee structure for permissive inspection at receiving points will be based on poundage and will be set at the same level as for mandatory inspection, which is $.01 per pound.

It is also necessary to increase the hourly rates for permissive inspection and to specify that the hourly rates are for permissive inspection at redrying plants. In the past, virtually all permissive inspection was provided at redrying plants for grower cooperatives. These grading services involve confirming the grade previously assigned to tobacco sold on the auction markets to maintain blend consistency for the grower cooperatives. Accordingly, the hourly fee structure will be retained. However, as necessary, the hourly rate will be increased to recover costs. The base hourly rate of $32.40 is raised to $47.40, the overtime rate of $38.70 is raised to $53.70, and Sunday and holiday rate of $48.45 is raised to $64.45. These fees would cover expenses and maintain a reserve that would meet any reasonable contingency. The Department is required by law to fix and collect fees and charges to cover the Department s cost in operating the permissive tobacco inspection program.

Finally, although the provisions are seldom used, the same changes in hourly rates are made for the inspection and certification of nonquota tobacco produced and marketed in a quota area, because this is a similar kind of permissive inspection.

Further, it is hereby found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The tobacco marketing season will begin in June and this action is needed, as soon as possible, so as to treat all types of tobacco on an equal basis, (2) the National Advisory Committee for Tobacco Inspection Services unanimously recommended that the fee structure and rates for permissive inspection at receiving points be the same as for mandatory inspection at auction, and (3) this interim final rule provides a 30-day comment period, which is considered appropriate in this action, and all comments timely received will be considered prior to the finalization of this rule.

This rule has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), full consideration has been given to the potential economic impact upon small business. Small agricultural producers have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $500,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. There are about 300 tobacco warehouses and about 90,000 producers and almost all warehouses and producers may be classified as small entities. The AMS has determined that this action will not have a significant economic impact on a substantial number of small entities.

This rule revises the fee structure and increases fees for domestic permissive grading of tobacco. Under the Tobacco Inspection Act of 1935, as amended (7 U.S.C. 511-511q), fees collected must cover, as nearly as practicable, the Department s cost for performing the inspection service, including administrative and supervisory costs. These revisions do not affect the fee for the mandatory inspection of tobacco sold at designated auction markets or permissive export certification.

The AMS conducts reviews of the financial status of this program to determine whether the fee is sufficient. As a result of this review, it has been determined that, at the current fees, insufficient revenue is generated to meet the costs of the program and to maintain an adequate reserve fund. The major factors causing the need for additional funds are increases in Government salaries and benefits, travel allowances, and overall administrative costs since 1991. The crop-year 2000 revenues for permissive inspection and certification services at redrying plants were $213,000 and obligations were $300,000. Without a fee increase, crop-year 2001 and crop-year 2002 revenues for permissive inspection and certification services at redrying plants are projected at about $213,000 per year and obligations are projected at about $300,000 per year, and with a fee increase, crop-year 2001 and crop-year 2002 revenues are projected at $312,000 and obligations are projected at $300,000. This interim final rule will increase the hourly rates charged to users of domestic permissive inspection and certification services performed at redrying plants by about 46 percent. The AMS estimates that the increase in the hourly rate will yield about an additional $100,000 during crop-year 2001 and maintain an adequate reserve.

This rule also revises the fee structure for permissive inspection and certification at receiving points from an hourly basis to a poundage basis at the same rate as for mandatory inspection at auction. The procedures for grading tobacco and associated costs are virtually the same at both auction markets and receiving points. The National Advisory Committee for Tobacco Inspection Services, which is mandated by the Omnibus Reconciliation Act of 1981, met on March 6, 2001, and unanimously recommended that the fee structure and rates for permissive inspection at receiving points be the same as for mandatory inspection at auction.

Although it is anticipated that 60-75 percent of the 2001 tobacco crop will be sold by direct contract, and that some of this will be permissively inspected at receiving points, it would be difficult to predict the number of pounds for which permissive inspection will be requested and the resulting revenues. However, based upon the experience of the AMS with mandatory inspection at auction, a fee of $.01 per pound is estimated to cover the costs of $841,115 and an adequate reserve (assuming 120 million pounds of contract tobacco will be inspected in crop-year 2001 with the revenue of $1,200,000). The costs to entities would be proportional to their use of the service so that costs are shared equitably by all interested parties.

Finally, although the provisions are seldom used, the same changes in hourly rates are made for the inspection and certification of nonquota tobacco produced and marketed in a quota area, because this is a similar kind of permissive inspection.

These fees represent the minimum level needed to cover costs for the 2001 crop-year. In the future, AMS will continue to review the program to ensure that fees are adequate. Accordingly, we believe that the impact of this rule would not be significant on the users of the inspection and certification services.

This interim final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

What events have caused this AD? The FAA has received reports that the Honeywell KC 225 automatic flight control system (AFCS) is disconnecting without warning during flight in a gross mistrim configuration. The suspect AFCS's incorporate computer modifications (Mods) 1 and/or 2.

Honeywell then conducted a factory test, where it was noted that the pitch trim ran when a malfunction of the trim sense 1 monitor timer happened with out-of-tolerance components in the trim sense 2 monitor timer. The autopilot then disconnected without warning because of other monitors in the autopilot.

What are the consequences if the condition is not corrected? This condition, if not corrected, could result in an undesirable autotrim command that the autopilot cannot detect in the required time. The airplane could then deviate from the selected altitude or the autopilot could disconnect without warning, which could result in heavy loads at the control column. Such loads in the pitch axis could result in loss of control of the airplane.

Is there service information that applies to this subject? Honeywell has issued Installation Bulletin No. 472 Alert, Revision 1, dated January 2001. This installation bulletin includes procedures for:

What has FAA decided? The FAA has reviewed all available information, including the service information referenced above, and determined that:

What does this AD require? This AD requires you to accomplish the actions previously specified in Honeywell Installation Bulletin No. 472 Alert, Revision 1, dated January 2001.

Will I have the opportunity to comment prior to the issuance of the rule? Because the unsafe condition described in this document could result in potential loss of control of the airplane, FAA finds that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

How do I comment on this AD? Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, we invite your comments on the rule. You may send whatever written data, views, or arguments you choose. You need to include the rule's docket number and send three copies of your comments to the address specified under the caption ADDRESSES. We will consider all comments received by the closing date specified above. We may change this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

Are there any specific portions of the AD I should pay attention to? The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may read all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

We are reviewing the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on whether the style of this document is clear, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.plainlanguage.gov.

How can I be sure FAA receives my comment? If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2001-CE-08-AD.” We will date stamp and mail the postcard back to you.

Does this AD impact various entities? These regulations 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, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

Does this AD involve a significant rule or regulatory action? 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 (otherwise, an evaluation is not required). A copy of it, if filed, may be obtained from the Rules Docket.

On January 5, 2000, the FAA issued AD 2000-01-09, Amendment 39-11506 (65 FR 1771) to require removal of certain unapproved parts before further flight. That amendment was prompted by findings that life-limited parts, with inaccurate records, have been introduced into the field and might be installed on the affected engines. That condition, if not corrected, could lead to an uncontained engine failure and damage to the airplane.

Since the issuance of that AD, the FAA discovered a compressor rotor during an audit with suspected military markings. The manufacturer confirmed that the marking was an electro-etched Low Cycle Fatigue Cycles (LCFC) marking used strictly on military parts. The original AD, AD 2000-01-09, did not identify this particular compressor rotor or the three additional rotors containing unapproved parts discovered at other locations during subsequent audits.

Since an unsafe condition has been identified that is likely to exist or develop on other GE Aircraft Engines (GEAE) CJ610 series turbojet and CF700 series turbofan engines of the same type design, this AD supersedes AD 2000-01-09 to require removal before further flight of the additional unapproved parts not listed in the original AD that have been introduced into the field and might be installed on the affected engines.

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 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 99-NE-58-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.

On February 13, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising Class E airspace at Jackson Hole, WY, in order to accommodate a new SIAP and DPs at Jackson Hole Airport, Jackson Hole, WY (66 FR 30). This amendment provides Class E5 airspace at Jackson Hole, WY, to meet current criteria standards associated with the SIAP and DPs. Interested parties were invited to participate in the rulemaking proceeding by submitting written comments on the proposal. No comments were received.

This amendment to Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) revises Class E airspace at Jackson Hole, WY, in order to accommodate newly developed SIAP and DPs to the Jackson Hole Airport, Jackson Hole, WY. This amendment revises Class E5 airspace at Jackson Hole, WY, to meet current criteria standards associated with the SIAP and DPs. The FAA establishes Class E airspace where necessary to contain aircraft transitioning between the terminal and en route environments. This rule is designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under Instrument Flight Rules (IFR) at the Jackson Hole Airport and between the terminal and en route transition stages.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. 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 has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This document contains amendments to 26 CFR part 31, Employment Taxes and Collection of Income Tax at the Source. On December 6, 2000, temporary and final regulations (TD 8909) relating to the deposit of Federal employment taxes under section 6302 of the Internal Revenue Code were published in the Federal Register (65 FR 76152). A notice of proposed rulemaking (REG-114423-00) cross-referencing the temporary regulations was published in the Federal Register for the same day (65 FR 76194). No comments were received from the public in response to the notice of proposed rulemaking.

These final regulations adopt the rules of the temporary regulations. Under these rules, a taxpayer does not have to make deposits of Federal employment taxes for a quarterly or annual return period if the tax for the period is less than $2,500 and the taxpayer remits its full liability with a timely filed return for the period. The regulations are applicable with respect to quarterly and annual periods beginning on or after January 1, 2001.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of the regulations is Brinton T. Warren of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division). However, other personnel from the IRS and Treasury Department participated in their development.

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

The following regulations were placed in effect temporarily during the period January 1, 2001 and March 31, 2001, unless otherwise indicated. This notice also includes 3 regulations that were not received in time to be included on the quarterly notices for the third and fourth quarters of 2000.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for making it effective less than 30 days after Federal Register publication. Good cause exists for not publishing a NPRM for this regulation. Due to the sensitive and unpredictable nature of the USS SAMUEL ELIOT MORISON's schedule, the Coast Guard received insufficient notice to publish proposed rules in advance of the event. Any delay encountered in this regulation's effective date would be contrary to public interest since immediate action is needed to protect the USS SAMUEL ELIOT MORISON, her crew, the public and the area adjoining Coddington Cove.

From May 21, 2001, to May 25, 2001, the USS SAMUEL ELIOT MORISON will be berthed at Pier 2 on the Newport Naval Station, Newport, RI. Pier 2 is located within Coddington Cove, along the East Passage of Narragansett Bay. The safety and security zones are needed to protect the USS SAMUEL ELIOT MORISON, her crew and the public from harmful or subversive acts, accidents or other causes of a similar nature in the vicinity of Coddington Cove. The safety and security zones have identical boundaries. All persons, other than those approved by the Captain of the Port or his authorized patrol representative will be prohibited from the zones. The zones encompass the area within a line drawn from the western most edge of the chartered breakwater to the western most edge of Pier 1. The public will be made aware of the safety and security zones through a Broadcast Notice to Mariners made from U.S. Coast Guard Group Woods Hole. U.S. Navy personnel will assist in the enforcement of these zones.

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). The sizes of the zones are the minimum necessary to provide adequate protection for the USS SAMUEL ELIOT MORISON, her crew, adjoining areas, and the public. The entities most likely to be affected are lobstermen engaged in setting and retrieving pots and pleasure craft engaged in recreational activities and sightseeing. These individuals and vessels have ample space outside of the safety and security zones to engage in these activities and therefore they will not be subject to undue hardship. Commercial vessels, excluding lobstermen, do not normally transit the area of the safety and security zones. Any lobstermen who have gear deployed within the safety and security zones, may request permission from the COTP or his authorized patrol representative to enter the zones to retrieve their gear. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting the USS SAMUEL ELIOT MORISON and the public.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), we considered whether this proposal will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit into Coddington Cove from May 21, 2001 to May 25, 2001. The safety and security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic can pass safely around the area and only a small number of commercial fishing vessels operate in the area. Vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the safety and security zones to engage in these activities. Before the effective period, we will issue maritime advisories widely available to users of the area.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call LT Casey Chmielewski, telephone (401) 435-2335. 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 comments on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribe, 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.

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with fireworks displays. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Chicago has determined firework launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platforms will help ensure the safety of person and property at these events and help minimize the associated risk.

The safety zone will encompass the waters of the Chicago Harbor bounded by the following positions: starting at 41°52.43 N, 087°36.43 W, thence East to 41°52.43 N, 087°36.16 W, thence South to 41°52.28 N, 087°36.16 W, thence West to 41°52.28 N, 087°36.43 W, thence North back to the first position. This area includes a portion of the Monroe Street Harbor including the Grant Park anchorage areas (33 CFR 110.83), the entrance to the Monroe Street Harbor, as well as a portion outside the breakwall for the Monroe Street Harbor.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Chicago or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

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 this rule 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). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This determination is based on the minimal time that vessels will be restricted from the zone, and the zone is in an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of an activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The zone is only in effect for few hours on the day of the event. Vessel traffic can safely pass outside the safety zone during the event. Traffic may be allowed to pass through the safety zone under Coast Guard escort with the permission of the Captain of the Port Chicago. Before the effective period, we will issue maritime advisories widely available to users of the Port of Chicago by the Ninth Coast Guard District Local Notice to Mariners, Marine information broadcasts, and facsimile broadcasts may also be made. Additionally, the Coast Guard has not received any negative reports from small entities affected during this display in previous years.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Chicago (see ADDRESSES. )

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

We have analyzed this 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 costs. This rule would not impose an unfunded mandate.

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

This 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.

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 32(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

Question: What action is EPA approving?

Answer: EPA is approving the State of West Virginia (WV) landfill 111(d) plan, as submitted by the WV Division of Environmental Protection (DEP), Office of Air Quality, on May 29, 1998, and as amended on May 15, 2000, and December 20, 2000. Also, EPA is approving the requested delegation of the November 8, 1999 promulgated Federal landfill 111(d) plan (64 FR 60689) generic compliance schedule, including the requirements for the initial design capacity and non-methane organic compound (NMOC) emissions reports. EPA is publishing this approval action without prior proposal because we view this as a noncontroversial action and anticipate no adverse comments.

Question: What is a State 111(d) plan?

Answer: Section 111(d) of the Clean Air Act (CAA) requires that “designated” pollutants, controlled under section 111(b) standards of performance for new stationary sources, must also be controlled at existing sources (i.e., designated facilities) in the same source category. Furthermore, section 111(d) requires EPA to establish procedures for state submittal and EPA approval of state plans that implement state adopted emissions guidelines (EG), promulgated by EPA, for the control of designated pollutants and facilities. State 111(d) plans, approved by EPA, implement and provide for federal enforcement of the EG requirements.

Question: What pollutant(s) will this action control?

Answer: The promulgated March 12, 1996 EPA EG (61 FR 9919) are applicable to existing municipal solid waste (MSW) landfills (i.e., the designated facilities) that emit landfill gas (LFG). LFG consists primarily of carbon dioxide, methane, and nonmethane organic compounds (NMOC). MSW landfills are the largest manmade source of methane emissions in the United States. The designated pollutant, NMOC, is a mixture of more than 100 different compounds, including volatile organic compounds (VOC), and hazardous pollutants (HAP), such as vinyl chloride, toluene, and benzene. A collateral benefit in the control of landfill NMOC is the control of methane.

Question: What are the expected environmental and public health benefits from controlling Landfill Gas emissions?

Answer: Studies indicate that MSW landfill gas (LFG) emissions at certain levels can have adverse effects on both public health and welfare. EPA presented its concerns regarding the health and welfare effects of landfill gases in the preamble to the MSW landfill regulations (61 FR 9905). As noted above, MSW landfills emit NMOC that contains HAP, and VOC, including odorous compounds. Exposure to HAP can lead to cancer, respiratory irritation, and damage to the nervous system. VOC emissions contribute to the formation of ozone which can result in adverse affects on human health and vegetation. Methane contributes to global climate change and can also result in fires or explosions, if the gas accumulates in physical structures on or off the landfill site. The WV 111(d) plan will serve to significantly reduce these potential problems associated with LFG emissions.

Question: What general EPA requirements must the West Virginia DEP meet to receive approval of the WV 111(d) plan ( the “plan”)?

Answer: EPA promulgated detailed procedures for submitting and approving State plans in 40 CFR part 60, subpart B. Also, EPA promulgated the MSW landfill EG (subpart Cc) and a related NSPS (subpart WWW) on March 12, 1996, and amended them both on June 16, 1998 and February 24, 1999. The West Virginia plan must meet the requirements of (1) 40 CFR part 60, subpart Cc, §§ 60.30c through 60.36c, and the related subpart WWW; and (2) 40 CFR part 60, subpart B, §§ 60.23 through 26. In addition, a State requesting delegation of authority under the Federal 111(d) plan must demonstrate that it has adequate resources and the legal authority to administer and enforce the program. The DEP has made the required demonstration with respect to the delegated tasks.

States were required to submit their MSW landfill 111(d) plans to EPA on December 12, 1996, pursuant to the provisions of section 111(d) of the CAA and 40 CFR part 60, subpart B, and the promulgated MSW landfill EG. As a result of litigation over the landfill rule, on November 13, 1997, EPA issued a notice of proposed settlement in National Solid Wastes Management Association v. Browner, et al., No. 96-1152 (D.C. Cir), in accordance with section 113(g) of the Act. See 62 FR 60898. Pursuant to the proposed settlement agreement, EPA published, in the Federal Register, a direct final rulemaking on June 16, 1998, in which EPA amended 40 CFR part 60, subparts Cc and WWW, to add clarifying language, to make editorial amendments, and to correct typographical errors. The proposed settlement did not vacate or void the March 12, 1996 MSW landfill EG or NSPS. See 63 FR 32743-32753, 32783-32784. In part, these amendments clarified the EG regulatory text with respect to landfill mass and volume applicability and Title V permit requirements. On February 24, 1999 (64 FR 9258), EPA amended the MSW landfill rule to further clarify the regulatory text and correct errors with respect to the due date for the submittal of the initial landfill design capacity and emissions rate reports, and the definition of landfill “modification”. In summary, these amendments relate to four substantive EG changes: (1) Landfill mass “and “ volume applicability threshold language, (2) timely Title V permit applications, (3) the definition of landfill “modification”, and (4) the due date for submittal of initial design capacity and NMOC emissions rate reports. Additional technical corrections to the NSPS were published on April 10, 2000 (65 FR 18906).

Question: What does the West Virginia State Plan contain?

Answer: Consistent with the requirements of subparts B and Cc, as amended, the West Virginia Plan contains the following:

1. A demonstration of the State's legal authority to implement the section 111(d) State Plan;

2. West Virginia Rule 45CSR23, as the enforceable mechanism;

3. A source inventory of known designated facilities, including NMOC emissions rate estimates;

4. Emission collection and control requirements that are no less stringent than those in subpart Cc;

5. A description of the West Virginia process for the review and approval of site-specific gas collection and control design plans

6. A source compliance schedule that requires final compliance no later than that required in EPA's November 8, 1999 Federal 111(d) plan (64 FR 60703);

7. Source testing, monitoring, recordkeeping, and reporting requirements;

8. Records of the public hearings on the State Plan; and

9. Provision for State submittal to EPA of annual reports on progress in plan enforcement.

On May 29, 1998, the DEP submitted the WV 111(d) plan that identifies existing MSW landfills in the State of West Virginia and establishes standards for the control of landfill gas emissions from these facilities. The plan is entitled: “West Virginia Division of Environmental Protection Office of Air Quality State Plan for Municipal Solid Waste (MSW) Landfills”. The State has adopted 40 CFR part 60, subparts Cc and WWW, as amended, by reference, such that they apply to both new and existing municipal solid waste (MSW) landfills under one regulation. The adoption of this regulation is incorporated into the State of West Virginia “ Title 45 Legislative Rule Division of Environmental Protection Office of Air Quality ” in Series 23 to Prevent and Control Emissions from Municipal Solid Waste Landfills.

On May 1, 1998, the DEP MSW landfill regulation 45CSR23 became effective. In response to the amended EG and NSPS requirements, the regulation was amended, and became effective on May 1, 2000. 45CFR23 applies to existing MSW landfills and incorporates by reference (IBR) related and applicable new source performance standards, subpart WWW, requirements. Also the amended plan, submitted to EPA on May 15, 2000, contains a request for delegation of EPA's November 8, 1999 Federal landfill 111(d) plan (i.e., 40 CFR part 60, subpart GGG) compliance schedule requirements. In a December 20, 2000 letter to EPA, the DEP clarified that its delegation request included the Federal plan's initial design capacity and NMOC emission rate reporting requirements.

Question: Does the West Virginia plan meet all EPA requirements for approval?

Answer: Yes. The DEP has submitted a 111(d) plan that conforms to all EPA requirements under 40 CFR part 60, subparts B, Cc, and WWW. Details regarding the approvability of plan elements are included in the technical support document (TSD) associated with this action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

Question: How do I determine if my MSW landfill is subject to the WV 111(d) plan?

Answer: If you commenced construction, reconstruction, or modification of your MSW landfill before May 30, 1991, and have accepted waste at any time since November 8, 1987, or the landfill has additional capacity for future waste deposition, then it is subject to the 111(d) plan requirements.

Question: What general requirements must I meet as an affected landfill owner/operator who is subject to the EPA approved WV plan?

Answer: The plan requires you to submit an initial design capacity report, and possibly a NMOC emissions rate report. If the design capacity of your landfill is equal to or greater than 2.5 million megagrams and 2.5 million cubic meters of MSW, the plan requires you to also submit, concurrently with the design capacity report, an initial NMOC emissions rate report. As required under 40 CFR 62.14355(a) of the Federal landfill 111(d) plan, both the initial capacity and NMOC emissions rate reports were due April 6, 2000. The initial NMOC and any subsequent emissions rate determinations are required to be calculated according to methods specified in the regulation. If your calculated landfill NMOC emissions rate were 50 megagrams/year, or more per year, then you are required to install a MSW landfill gas collection and control system that meets the design and operational requirements specified in 45CSR 23-3 and 3.3, which incorporates by reference all related and applicable NSPS, Subpart WWW, requirements at 40 CFR 60.759 and 753.

Question: If my landfill is subject to the plan's requirement for installation of a LFG collection and control system, what emissions limits must I meet, and in what time frame?

Answer: You must install a landfill gas collection and control system to reduce the collected NMOC emissions by 98 weight-percent, or reduce the emissions from the control device to a concentration of 20 parts per million by volume, or less, for an enclosed combustor. Your final compliance date and the related increments of progress are dependent upon when your annual emissions rate report initially shows that NMOC emissions are ≥ 50 megagrams per year (Mg/yr). Based on the Federal plan requirements at 40 CFR 62.14356(c), you must meet the following compliance schedule and increments of progress, except as provided in 40 CFR 62.14356(d):

Question: Are there any operation requirements for my installed LFG collection and control system?

Answer: Yes, there are operational requirements. The operational requirements are summarized below:

1. Operate the collection system wellheads at negative pressure;

2. Operate the interior collection wellheads with a landfill gas temperature less than 550°C and with either a nitrogen level less than 20 percent, or an oxygen level less than 5 percent;

3. Operate the collection system so that the methane gas concentration is less than 500 parts per million by volume above background at the surface of the landfill;

4. Operate the collection system so that the colleted gases are vented to the control system; and

5. Operate the collection and control system at all times.

Details regarding all operational requirements are stipulated in Subpart WWW, 40 CFR 60.753

Question: What are the testing, monitoring, recordkeeping, and reporting requirements for my landfill?

Answer: Your testing, monitoring, recordkeeping, and reporting requirements are summarized below:

Performance testing, to determine compliance with 98 weight-percent efficiency or the 20 ppmv outlet concentration level, must be completed within 180 days after construction completion on the collection and control system. Testing methods must be consistent with EPA source test methods referenced in the DEP landfill regulation.

Monitoring temperature on a continuous basis is required for enclosed combustion control devices, and flares. Measurement of the gas flow rate from the collection system to an enclosed combustion device, or flare, is required at least once every 15 minutes, unless the bypass line valves are secured in a closed position. Monthly monitoring requirements are specified in the regulation for the gas collection system. Gas wellhead monitored parameters include gauge pressure, nitrogen or oxygen concentration, and temperature. Quarterly monitoring is required of NMOC surface concentrations.

Reporting requirements relate to landfill design capacity and NMOC emission rates; submittal of a collection and control system design plan; and system start-up, performance testing, operations, closure notification, and equipment removal.

Records must be keep on-site of maximum design capacity, current amount of solid waste in-place, year-by-year waste acceptance rate; up-to-date readily accessible records for the life of the control equipment of certain data measured during the initial performance test or compliance determination; and control device vendor specifications until removal.

Details regarding testing, monitoring, recordkeeping, and reporting requirements are stipulated in subpart WWW, 40 CFR 60.754, 60.755, 60.756, and 60.757.

Question: Am I required to apply for a Title V permit?

Answer: Yes, if your landfill design capacity is equal to or greater than 2.5 million Mg and 2.5 million cubic meters. As provided under the delegated provisions of the Federal plan, you are required to apply for a Title V permit no later than April 7, 2001.

Question: If I modify or expand the capacity of my landfill, what additional requirements must I meet?

Answer: Any MSW landfill that commences construction, modification, or reconstruction on or after May 30, 1991 is subject to the EPA new source performance standards (NSPS) for landfills, 40 CFR part 60, subpart WWW.

Based upon the rationale discussed, herein, and in further detail in the TSD associated with this action, EPA is approving the West Virginia MSW landfill 111(d) plan, including the delegation of the Federal plan's compliance schedule and initial reporting requirements. Except as noted, herein, upon the effective date of this rule approving West Virginia's 111(d) plan for landfills, the Federal plan promulgated on November 8, 1999, will no longer apply in West Virginia. As provided by 40 CFR 60.28(c), any revisions to the WV section 111(d) plan or associated regulations will not be considered part of the applicable plan until submitted by the DEP in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B, requirements.

EPA is publishing this action 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 111(d) plan should relevant adverse or critical comments be filed. This rule will be effective July 23, 2001 without further notice unless the Agency receives relevant adverse comments by June 22, 2001. If 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 this rule. Only parties interested in commenting on this 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 23, 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 111(d) plan 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 111(d) plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d) plan submission, to use VCS in place of a 111(d) plan 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 23, 2001. Filing a petition for reconsideration by the Administrator of this final rule approving West Virginia's 111(d) plan for Municipal Solid Waste landfills 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).)

This section presents EPA's most recent acceptable listing decisions for substitutes in the refrigeration and air conditioning sector. For copies of the full list of SNAP decisions in all industrial sectors, contact the EPA Stratospheric Protection Hotline at (800) 296-1996.

The sections below discuss the substitute listing in detail. Appendix A contains a table summarizing today's listing decisions. The comments contained in the table provide additional information, but are not legally binding under section 612 of the Clean Air Act. In addition, these comments are not a comprehensive list of other legal obligations you may need to meet when using the substitute. Although you are not required to follow recommendations in the comments section of the table to use a substitute, EPA strongly encourages you to apply the comments when using these substitutes. In many instances, the comments simply refer to standard operating practices in existing industry and/or building-code standards. Thus, many of these comments, if adopted, would not require significant changes to existing operating practices.

The chemical blend of 92% by weight HFC-134a (1,1,1,2-tetrafluoroethane) and 8% by weight HBr (hydrogen bromide) is acceptable for use as the primary heat transfer fluid in new secondary-loop equipment for not-in-kind replacements of systems using:

• CFC-12 and R-502 in retail food refrigeration; and

• CFC-12 and R-502 in cold storage warehouses

HFC-134a/HBr (92/8) is also acceptable as a substitute in new equipment for:

• CFC-11, CFC-12, CFC-114, CFC-115, and R-502 in industrial process refrigeration; and

• CFC-12 and R-502 in refrigerated transport

The submitter of this blend claims that the blend is protected under U.S. Patent Number 5,989,448. This submission may be found under EPA Air Docket A-91-42, item VI-D-275.

Environmental information: The ozone depletion potential (ODP) of HBr is estimated to be less than 0.02, while its atmospheric lifetime is estimated at 2 to 7 days (ICF Risk Screen, EPA Air Docket A-91-42, item IX-B-68).

Due to its short atmospheric lifetime, the global warming potential (GWP) of HBr is very low, while the GWP of HFC-134a is 1600 (100-year integrated time horizon referenced to carbon dioxide) [WMO, Scientific Assessment of Ozone Depletion: 1998]. The contribution of this blend to global warming will be minimized in each end-use through the implementation of the venting prohibition under section 608(c)(2) of the Clean Air Act (see 40 CFR part 82, subpart F). This section and EPA's implementing regulations prohibit venting or release of substitutes for class I and class II ozone depleting substances used in refrigeration and air-conditioning and require proper handling and disposal of these substances, such as recycling or recovery.

HFC-134a has been exempted from the list of volatile organic compounds (VOCs) under Clean Air Act regulations (40 CFR 51.000) for purposes of the State implementation plan (SIP) provisions of the Clean Air Act; HBr has not. Emissions of HBr should be controlled in accordance with VOC restrictions in approved SIPs.

Flammability information: Neither component of this blend is flammable.

Toxicity and exposure data: HBr has an OSHA-established eight-hour Permissible Exposure Limit (PEL) of only 3 ppm. The American Council of Governmental Industrial Hygienists (ACGIH) has recommended a Threshold Limit Value (TLV) of 3 ppm as well. EPA has previously listed HFC-134a, with a Workplace Environmental Exposure Level (WEELs) from the American Industrial Hygiene Association (AIHA) of 1000 ppm, as an acceptable substitute in a variety of applications. EPA expects users of this blend to follow all recommendations specified in the Material Safety Data Sheets (MSDSs) for HBr, HFC-134a and the blend. The Agency also expects that users will adhere to any acceptable exposure limits set by any voluntary consensus standards organization, including the TLVs from the ACGIH and WEELs from the AIHA as stated above.

Because of the health risks, EPA has at this time only evaluated this blend in limited applications. Within the retail food refrigeration and cold storage warehouse end uses, EPA is finding the use of HFC-134a/HBr (92/8) acceptable only for secondary-loop systems; accidental releases of the chemical in these applications are expected to generate negligible potential exposure to the public and workers. Within the refrigerated transport end use, direct exposure to high quantities of the refrigerant is not likely because of the small charge size and the typical placement of the unit away from direct human contact. Within the industrial process refrigeration end use, such as at chemical or other industrial plants, proper exposure controls and ventilation are generally available as well as established protocols for handling potentially hazardous materials, and therefore overall occupational risk is mitigated.

Additional precautions could include installation of warning signs, worker education and technician training. Such practices will further reduce the likelihood of exposure, and are therefore recommended for all approved end uses.

The chemical blends submitted to EPA with the unregistered trade names listed above are acceptable for use in new and retrofit equipment as substitutes for:

• CFC-13, CFC-113, CFC-114 and blends thereof in very low temperature refrigeration.

IGC Polycold Systems Inc., the submitter of the above-listed blends, claims that the compositions of these blends, tailored for use in its equipment, are confidential business information. A redacted version of this submission may be found under EPA Air Docket A-91-42, item VI-D-267.

Environmental information: Each of these blends contain one or more hydrochlorofluorocarbon (HCFC) component(s), and thus the blends do not have a zero ozone depletion potential (ODP).

The global warming potentials (GWPs) of some of the blend components are very high; however, the GWPs of the blends as formulated are less than the GWPs of the refrigerants they are replacing and less than most other alternatives approved for use within the very low temperature refrigeration end use. EPA strongly encourages the continued search for lower-GWP alternatives for use in this end use and prompt identification and repair of any leaks that may occur. The contribution of these blends to global warming will be minimized through the implementation of the venting prohibition under section 608(c)(2) of the Clean Air Act (see 40 CFR part 82, subpart F). This section and EPA's implementing regulations prohibit venting or release of substitutes for class I and class II ozone depleting substances used in refrigeration and air-conditioning and require proper handling and disposal of these substances, such as recycling or recovery.

Some components of these blends have not been exempted from listing as VOCs under Clean Air Act regulations for purposes of the SIP program. Emissions should be controlled in accordance with requirements in approved SIPs.

Flammability information: The submitter states that tests conducted by Hauser Engineering Services determined that all of the blends, except PGC-100, PGC-150 and PGC-151, are flammable in accordance with ASTM E-681-85. However, a flammability analysis and risk assessment provided by the submitter found little to no associated risk, due in part to the small charge size used and the low probability of a leak occurring in the semi-hermetically-sealed equipment. To further reduce flammability risks, EPA recommends that adequate personnel training and room ventilation be provided.

Toxicity and exposure data: All components in these blends have eight-hour time-weighted average occupational exposure limits, such as Threshold Limit Values (TLVs) from the American Council of Governmental Industrial Hygienists (ACGIH) and Workplace Environmental Exposure Levels (WEELs) from the American Industrial Hygiene Association (AIHA), on the order of 1,000 ppm, with one exception. Although one component does have a WEEL significantly less than 1,000 ppm, the EPA risk screen and occupational exposure scenarios indicate that likely exposure to this chemical or any of the other components of these blends will remain below the recommended limits within the proposed end use, including manufacture and disposal scenarios. Further, the company's Material Safety Data Sheets (MSDSs) for all 12 blends recommend an acceptable exposure limit (AEL) of 30 ppm. These exposure limits for the blends are lower than the WEELs for the components; therefore, EPA believes that the company's recommended AELs are protective of human health. EPA expects users to follow all recommendations specified in the MSDSs for the blends and other safety precautions common in the refrigeration and air conditioning industry.

On December 18, 2000, EPA listed SP34E as acceptable for use as a substitute for CFC-12 for retrofit and new motor vehicle air conditioning (65 FR 78979). Based on a final rule promulgated by EPA on October 16, 1996 (61 FR 54029), all substitutes listed as acceptable for use in motor vehicle air conditioning must be used with unique fittings for service ports and refrigerant containers. In the original SP34E listing, low-side and high-side service port fittings, as well as fittings for large refrigerant containers (>20 pounds) were identified, but fittings for small cans were not. Since then, the following fittings have been developed for small cans, and use of these fittings is required to use SP34E in motor vehicle air conditioning systems:

Section 612 of the Clean Air Act authorizes EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

• Rulemaking —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

• Listing of Unacceptable/Acceptable Substitutes —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. EPA must publish a corresponding list of acceptable alternatives for specific uses.

• Petition Process —Section 612(d) grants the right to any person to petition EPA to add a substance to or delete a substance from the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, it must publish the revised lists within an additional six months.

• 90-day Notification —Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.

• Outreach —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

• Clearinghouse —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published the final rulemaking (59 FR 13044) which described the process for administering the SNAP program. In the same document, EPA issued its first acceptability lists for substitutes in the major industrial use sectors. These sectors include:

As described in this original rule for the SNAP program, EPA does not believe that rulemaking procedures are required to list alternatives as acceptable with no limitations. Such listings do not impose any sanction, nor do they remove any prior license to use a substance. Therefore, by this action EPA is adding substances to the list of acceptable alternatives without first requesting comment on new listings.

EPA does, however, believe that notice-and-comment rulemaking is required to place any substance on the list of prohibited substitutes, to list a substance as acceptable only under certain conditions, to list substances as acceptable only for certain uses, or to remove a substance from the lists of prohibited or acceptable substitutes. Updates to these lists are published as separate notices of rulemaking in the Federal Register .

The Agency defines a “substitute” as any chemical, product substitute, or alternative manufacturing process, whether existing or new, intended for use as a replacement for a class I or class II substance. Anyone who produces a substitute must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to substitute manufacturers, but may include importers, formulators, or end-users, when they are responsible for introducing a substitute into commerce.

You can find a complete chronology of SNAP decisions and the appropriate Federal Register citations from the SNAP section of EPA's Ozone Depletion World Wide Web site at www.epa.gov/ozone/title6/snap/chron.html. This information is also available from the Air Docket (see ADDRESSES section above for contact information).

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301124. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of May 26, 1999 (64 FR 28371) (FRL-6081-2), EPA issued a final rule pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) establishing a temporary exemption from the requirement of a tolerance for residues of A. flavus AF36 on cotton grown in 5 counties in Arizona (40 CFR 180.1206). This final rule included a summary of the Agency's assessment of the health effects data submitted in support of the extension of the temporary tolerance exemption. The temporary exemption from tolerance was extended until December 2001 (64 FR 35049, June 30, 1999) (FRL-6087-3) to allow for passage of the treated commodities through the channels of trade.

Comments submitted to the Agency regarding the use of this competitive fungal agent were by the cotton growers in the region who were all in favor of the extension of the exemption from the temporary tolerance. Both the toxigenic and atoxigenic strains are naturally occurring in Arizona. The growers were of the opinion that this technology is likely to reduce the high levels of the naturally occurring, toxin-producing strain of A. flavus by displacement. No adverse effects were reported in the yearly annual reports of the Experimental Use Permit, and in some instances aflatoxin levels of cotton seed were reduced in treated cotton.

New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

The fungal agent is applied prebloom to the soil of treated cotton fields. When conditions are appropriate, the AF 36 spores land on the cotton plant and germinate to displace the naturally occurring toxigenic strain. No adverse effects were reported in the annual reports which the registrant submitted as required in the EUP.

This extension of the exemption from the requirement of a temporary tolerance is associated with an extension of an Experimental Use Permit (EUP, EPA Reg. No. 69224-EUP-1). This extension of the EUP will allow aerial application of A. flavus AF36 in the following counties of Arizona: Yuma (3,300 acres), Maricopa (13,150 acres), Mohave (1,700 acres) and Pinal (1,850 acres). This final rule extends the temporary exemption from a tolerance for residues of Aspergillus flavus AF36 on cotton until December 30, 2003.

Of the strains of A. flavus found naturally in Arizona, this atoxigenic strain comprises about 15% of the natural microbial population in the soil, as opposed to the predominant S or toxigenic S strain.

Summaries of the toxicological profile and other relevant manufacturing and health effects data, to comply with the guideline requirements of the Food Quality Protection Act of 1996, were reported in the Federal Register publication of the final rule of May 26, 1999, extending the temporary tolerance exemption. Based on the previously submitted data outlined in the final rule, there is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population, including infants and children, to A. flavus AF36 from the limited use pattern of this experimental use permit. This includes all anticipated dietary exposures and all other exposures for which there is reliable information.

The Agency continues to require that the pesticide must not be applied within a boundary of 400 feet of residential areas, schools, daycare and health care facilities and hospitals to minimize exposure to human adults, infants and children.

Data have been submitted to demonstrate that this strain excludes the aflatoxin-producing strain when it is applied prior to flowering. Thus, the proposed use is not likely to result in appreciable increases in the long-term population of A. flavus on the crop beyond naturally occurring levels. Furthermore, there is no expectation of cumulative effects with other pesticides, because this is the only registered experimental microbe in this genus.

As in the earlier EUP, the Agency requires that applicators and other handlers must wear gloves, a dust/mist filtering respirator with NIOSH approval prefix N-95, R-95 or P-95, long sleeved shirt and long pants, and shoes plus socks to mitigate potential worker exposure.

The Food and Drug administration (FDA) regulates the levels of aflatoxin in cotton seed meal and other commodities associated with the production of cotton. Treated cotton and its by products are screened for aflatoxin prior to introduction into the channels of commerce. FDA does not allow cottonseed products containing aflatoxin at 20 parts per billion (ppb) or higher to be used in dairy rations. FDA regulations also do not allow cottonseed products containing aflatoxin above 300 ppb to be used for feeding beef cattle.

An exemption from temporary tolerance for residues of A. flavus isolate AF36 on cotton (40 CFR 180.1206) is currently in effect in conjunction with an Experimental Use Permit (61 FR 30235, June 14, 1996, and extended to expire in December 2001) (FRL-5377-6).

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301124 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before july 23, 2001.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301124, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, 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 rule will 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. Thus, Executive Order 13175 does not apply to this rule.”

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations”, “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301132. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of May 5, 1999 (64 FR 34153) (FRL-6072-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (9F5051) for tolerances by Syngenta Crop Protection, P.O. Box 18300 Greensboro, NC 27419-8300. This notice included a summary of the petition prepared by Syngenta Crop Protection, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.565 be amended by establishing tolerances for combined residues of the insecticide thiamethoxam, 3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl- N -nitro-4H-1,3,5-oxadiazin-4-imine and its metabolite ( N -(2-chloro-thiazol-5-ylmethyl)- N  ′-methyl- N ′′ -nitro-guanidine) in or on the raw agricultural commodities: tuberous and corm vegetables crop subgroup at 0.02 ppm, cucurbit vegetables crop group at 0.20 ppm, pome fruit crop group at 0.20 ppm, fruiting vegetables crop group at 0.25 ppm and tomato paste at 0.80 ppm.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that“ there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for combined residues of thiamethoxam and its metabolite in or on tuberous and corm vegetables crop subgroup at 0.02 ppm, fruiting vegetables crop group at 0.25 ppm, tomato paste at 0.80 ppm, cucurbit vegetables crop group at 0.20 ppm, and pome fruits crop group at 0.20 ppm. EPA's assessment of exposures and risks associated with establishing these tolerances follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by thiamethoxam are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

This action is directed to the public in general. This document clarifies certain requirements of the authorized RCRA program in the State of Wisconsin and, therefore, may be of particular interest to persons who generate, treat, store, dispose of, or otherwise handle hazardous waste in the State of Wisconsin.

Electronically. You may obtain electronic copies of this document by going to the listings from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. If you have any questions regarding the information in this notice or want copies of any other related documents, consult the person listed under FOR FURTHER INFORMATION CONTACT .

When a state is authorized to administer the RCRA program, EPA has made a determination that the state's authorized program is equivalent to the federal program. Thereafter the state's authorized laws and regulations apply in the state in lieu of the equivalent federal program regulations. ( See RCRA section 3006(b) and (c)). Authorized States are required to maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal hazardous waste program changes, the States must revise their programs and apply for authorization of the revisions. Revisions to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Authorization revision applications generally consist of a copy of the State regulations, a revised Attorney General's (AG) statement, a revised Program Description, a revised Memorandum of Agreement (MOA), or other documents EPA determines to be necessary (see 40 CFR 271.21(b)(1)). EPA maintains authority to bring enforcement action in authorized States under RCRA sections 3008, 3013, and 7003.

EPA codifies authorized State programs through incorporating the authorized state law in the Code of Federal Regulations, to better place regulated entities and members of the public on notice of the requirements pertaining to the generation and management of hazardous waste in a particular State. EPA incorporates by reference only the substantive authorized rules because the federal government uses its own enforcement authorities when bringing actions for alleged violations of the authorized state RCRA program. 40 CFR part 272 has been reserved for codification of approved State RCRA programs.

Wisconsin initially received Final Authorization on January 31, 1986 (51 FR 3783, January 30, 1986) to implement its base hazardous waste management program. Wisconsin received authorization for revisions to its program on June 6, 1989 (54 FR 22278, May 23, 1989), January 22, 1990 (54 FR 48243, November 22, 1989), April 24, 1992 (57 FR 15029, April 24, 1992), August 2, 1993 (58 FR 31344, June 2, 1993), October 4, 1994 (59 FR 39971, August 5, 1994) and October 4, 1999 (64 FR 42602, August 5, 1999). EPA uses 40 CFR 272.2501 for codification of decisions to authorize Wisconsin's program and for incorporation by reference of those provisions of its statutes and regulations that EPA will enforce under sections 3008, 3013 and 7003 of RCRA. EPA codified Wisconsin's authorized program on April 24, 1989 (54 FR 7422, February 21, 1989), May 29, 1990 (55 FR 11910, March 30, 1990), and November 22, 1993 (58 FR 49199).

In the following authorization and codification documents, EPA included references to a state variance authority which allows the Wisconsin Department of Natural Resources (WDNR) to issue variances from hazardous waste licensing requirements in cases of “undue or unreasonable hardship:”

There is no analogous Federal variance authority. The purpose of this document is to clarify the limited circumstances under which the State may use this authority to vary an authorized RCRA requirement.

The Wisconsin legislature enacted the State hardship variance in 1978 and the WDNR adopted implementing administrative rules in 1981. Both the statutory and administrative provisions have been amended and renumbered over time; however, at all times relevant to this clarification document the hardship variance authority has been codified in State law at section 144.64(3) or section 291.31 of the Wisconsin Statutes and section NR 181.55(10) or section NR 680.50 of the Wisconsin Administrative Code. Consequently, this document clarifies all references to those specific state statutory and regulatory provisions in the authorization and codification of Wisconsin's hazardous waste program.

In the Federal Register documents listed above, EPA included reference to section 144.64(3) or section 291.31 of the Wisconsin Statutes and section NR 181.55(10) or section NR 680.50 of the Wisconsin Administrative Code without explaining that the use of these authorities to waive authorized RCRA rules is generally limited to granting variances from the surface impoundment double liner requirements of section 3005(j)(2) through (9) and (13) of RCRA  1 or when the State varies authorized State requirements that are more stringent than current Federal requirements imposing instead the same standards as the less stringent Federal requirements. For example, EPA may promulgate less stringent amendments to Federal rules while the States, because of a temporary lag in authorization, remain authorized for the pre-existing more stringent rules. States may use State waiver authorities to relax authorized State rules to the extent those rules are more stringent than analogous Federal rules (See, for example, 63 FR 65874 at 65925 (November 30, 1998)).

In addition, if a State authorized to implement the RCRA program has a permit waiver authority that is analogous to EPA's authority under section 121(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or RCRA section 7003, it may use this authority to waive the requirement to obtain a RCRA permit with respect to on-site response actions. As explained in EPA guidance, the two preconditions to allowing the use of this authority are that: “(1) The State has the authority under its own statutes or regulations to grant permit waivers; and (2) the State waiver authority is used in no less stringent a manner than allowed under Federal permit waiver authority, for example, section 7003 of RCRA or section 121(e) of CERCLA.” (See the Memorandum, “RCRA Permit Requirements for State Superfund Actions”, from J. Winston Porter to Regional Administrators, Region I-X (Nov. 16, 1987) (OSWER Dir. No. 9522.00-2).) Nothing in this clarification document changes or affects this policy in any way.

The references in 40 CFR 272.2501 and appendix A to part 272 to sections 144.64(3) and 291.31 of the Wisconsin Statutes and sections NR 181.55(10) and 680.50 of the Wisconsin Administrative Code provide notice that the State, as part of the authorized program, may use this authority only: (1) to grant variances from the surface impoundment double liner requirements of RCRA in those cases wherein the facility meets all of the requirements of RCRA section 3005(j); (2) to grant variances from more stringent authorized requirements that impose instead the same standards as the less stringent federal requirement; and (3) in the manner consistent with sections 7003 of RCRA or 121(e) of CERCLA, as described in applicable EPA guidance. Use of the State hardship variance authority with respect to any other authorized RCRA requirements is not part of the RCRA approved State program. Of course, States retain authority to waive or vary those State requirements that are broader in scope than, and therefore not part of, the Federal RCRA program. Therefore, with certain limited exceptions discussed herein, a State hardship variance cannot excuse compliance with RCRA program requirements. Persons who fail to comply with RCRA program requirements are subject to Federal enforcement under sections 3008, 3013, and 7003 of RCRA.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-45, adopted May 16, 2001, and released May 18, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-29, adopted May 16, 2001, and released May 18, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-41, adopted May 16, 2001, and released May 18, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

In the December 19, 2000, Federal Register (65 FR 79462), the Department published a comprehensive revision to its drug and alcohol procedures testing regulation (49 CFR Part 40). This complete revision becomes effective August 1, 2001. In this revision, the Department authorizes laboratories to report drug testing results to the MRO electronically and mandates use of the new shorter-version of the Federal Drug Testing Custody and Control Form (CCF).

Currently, the Department and HHS permit laboratories and employers to use the new CCF. The laboratory may transmit all results (negative and non-negative) to the MRO by mail or courier or by either faxing the completed laboratory copy (Copy 1) of the CCF or transmitting a scanned image of the form via computer. On August 1, 2001, for all negative results, laboratories will be permitted to send to MROs an electronically generated laboratory report and will not need to mail, courier, fax or send a scanned copy, thus initiating substantial savings related to processing paper records.

Additionally, since all laboratories and employers must use the new shorter form as of August 1, 2001, HHS has directed laboratories to treat submission of specimens for drug testing using the older (seven-part) form as a correctable flaw which the laboratory must correct using a memorandum for record from the collection site. Laboratories have indicated to HHS and the Department that without a transition period to change over to the new forms and without gradual phasing in of electronic reporting, they foresee substantial implementation problems. From previous experiences, laboratories have learned that collection sites are reluctant to destroy old forms and continue to use them until they deplete their supply. Without a phase-in period, laboratories are concerned that the continued use of old forms after August 1, will create a substantial paper burden. Also, the new forms were designed specifically to be used with the electronic reporting process. Until this reporting process is in place, there is little motivation to initiate the use of the new forms.

The Department is convinced that authorizing the laboratories and employers to initiate the use of electronic reporting (as provided in the new § 40.97) a few months earlier would have a beneficial impact on the industry. Through this document, the Department consents to laboratories using the procedures provided in the new rule before August 1, 2001. Laboratories are not required to use electronic reporting, however.