Section 212(d)(4)(C) of the Act provides authority for the Attorney General acting jointly with the Secretary of State (see Department of State regulation published elsewhere in this issue of the Federal Register ) to waive nonimmigrant visa requirements for aliens who are proceeding in immediate and continuous transit through the United States and are using a carrier which has entered into a contract with the Service authorized under section 233(c) of the Act, in this case an Immediate and Continuous Transit Agreement on Form I-426, also known as a TWOV Agreement.

This rule amends § 212.1(f)(2) by removing Russia from the list of countries whose citizens are ineligible for TWOV privileges.

Upon further review by the Service, and in consultation with the Department of State, the Service now has determined that Russia should be granted TWOV privileges. This determination has been made, in light of the factors that the Service has adopted, for determining which countries' citizens and nationals are ineligible to apply for TWOV privileges. The Service therefore is removing Russia from the listing of countries whose citizens are ineligible for TWOV privileges.

The implementation of this rule as an interim rule, with a 60-day provision for post-promulgation public comments, is based on the “good cause” exception found at 5 U.S.C. 553(b)(B) and 553(d)(3). Since the Service is removing a country from the list of ineligible countries, the Service finds that “good cause” exists under 5 U.S.C. 553(d)(3) to make this rule effective upon date of publication. Delaying the effective date of this interim rule is impractical and contrary to the public interest because it would prevent the Service and the Secretary of State from reinstating TWOV privileges on a timely basis. Accordingly, there is “good cause” under 5 U.S.C. 553 to make this rule effective upon the date of publication in the Federal Register .

The Acting Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that, although this rule may have an economic impact on small entities (air carriers), this rule is intended to encourage travel by Russian nationals and thus would have a positive impact on the air carrier and port-of-entry revenues.

This rule will not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This rule will not have substantial direct effects on the States, on the relationship between the Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 777-200 series airplanes was published in the Federal Register on January 16, 2001 (66 FR 3521). That action proposed to require repetitive detailed visual and ultrasonic inspections of the lower flange of the flaperon inboard support to find cracking; corrective actions, if necessary; and a modification, which terminates the repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the two comments received.

One commenter supports the proposed rule. The second commenter, an airline, states that the proposed rule does not apply to its fleet and offers no further comment.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 9 Boeing Model 777-200 series airplanes of the affected design in the worldwide fleet.

The FAA estimates that 1 airplane of U.S. registry will be affected by this AD. It will take approximately 3 work hours per airplane to accomplish the required inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspections required by this AD on U.S. operators is estimated to be $180 per airplane, per inspection cycle.

It will take approximately 6 work hours per airplane to accomplish the required terminating action, at an average labor rate of $60 per work hour. Required parts will cost approximately $2,932 per airplane. Based on these figures, the cost impact of the terminating action required by this AD on U.S. operators is estimated to be $3,292 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 767 series airplanes was published in the Federal Register on January 16, 2001 (66 FR 3515). That action proposed to require removing the two existing escape ropes in the flight compartment; installing new escape ropes, bags, and placards; and replacing the nylon straps with new straps; as applicable.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.

The commenter supports the proposed rule.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 321 Model 767 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 136 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $4,718 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $649,808, or $4,778 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to GE CF34-1A, -3A, -3A1, -3A2, -3B, and -3B1 engines was published in the Federal Register on February 27, 2001 (66 FR 12443). That action proposed to require initial and repetitive checks of magnetic chip detector indicators, which are located in the lubrication system for the engine bearings, in order to detect No. 5 bearing roller distress before air seal failure, and installation of a new modified design No. 5 bearing rotating air seal, P/N 4019T60G03, as terminating action for the repetitive inspection requirements of this AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Three commenters request that the repetitive inspection requirements be eliminated from the AD. The commenters state that they are already performing the inspections based upon recommendations from the manufacturer. The FAA does not agree. Although these individual commenters may already be complying with the proposed requirements, the FAA has determined that an unsafe condition exists that warrants requiring all operators to conduct mandatory repetitive inspections, until the terminating actions are accomplished. Therefore, the FAA must issue an AD to require repetitive inspections, regardless of the manufacturer's recommendations.

Two commenters request that the time to comply with the initial inspection requirements be increased from 30 hours after the effective date of the proposed AD to 100 hours after the effective date, for CF34-1A, -3A, and -3A2 engines. The commenters feel that a 100-hour initial inspection provides an acceptable level of safety based on risk analysis conducted by the type certificate holder, and will reduce the economic burden on operators. The FAA agrees. Further review of risk analysis data supports that an acceptable level of safety would result with a 100-hour initial inspection threshold rather than a 30-hour initial inspection threshold. Therefore, the FAA has changed the initial inspection compliance time for CF34-1A, -3A, and -3A2 engines to “100 flight hours from the effective date of this AD.”

One commenter requests that the time to comply with the repetitive inspection requirements be increased from an interval of 30 hours to an interval of 100 hours for CF34-3B engines. The commenter states that the extended time will reduce the economic impact on the commenter due to additional maintenance requirements, and make the CF34-3B inspection requirements the same as the CF34-3A inspection requirements. The FAA does not agree. Risk analysis data used by the FAA to establish the AD requirements shows that an unacceptable level of safety would result from increasing the inspection interval from 30 flight hours to 100 flight hours for the CF34-3B engine fleet.

One commenter requests that the wording of the AD be revised to reflect that the pilot may do the check, but a maintenance technician must do any required maintenance actions. Additionally, the same commenter and another commenter, request that the AD be revised to clarify that on CF34-1A, -3A, and -3A2 turbofan engines, chip detector checks are maintenance actions and are not to be performed by flight crew. CF34-1A, -3A, and -3A2 turbofan engine models have individual chip detectors. Those chip detectors are checked with an ohmmeter, unlike the CF34-3A1, -3B, and -3B1 engine models, which have a single master chip detector with a white triangle or illuminated indicator. The FAA agrees. The intent of the AD is to allow chip detector indicator checks to be done by the pilot for engine models with the master chip detector installation. Although the proposed AD would not have authorized the pilot to do any task beyond a visual check of the indicator, the FAA agrees that additional clarity is needed. Therefore, the FAA has revised paragraph (b) to clarify the requirements.

Two commenters request that the pilot be allowed to sign-off the 30-flight hour magnetic chip detector check. The commenters feel that the check is a very simple task on the CF34-3A1, -3B, and -3B1 engine installations. The chip detector panel location is accessed by aircrews on a daily basis in the normal course of their duties of determining and monitoring engine oil levels. The chip detector check that is required by paragraph (b) of the proposed AD is a simple go/no-go check and could be performed by an aircrew. The FAA agrees, but no revisions to the AD are needed as this is explicitly provided for in paragraph (b) of the proposed AD.

One commenter requests that the compliance time for the mandatory terminating action for the CF34-3A1, -3B, and -3B1 be increased from 15,000 cycles-in-service (CIS) after the effective date of the proposed AD, to 18,000 CIS after the effective date of the proposed AD. The commenter requests the change in anticipation of future rotating part life limit increases, and to coincide with scheduled shop visits in the future if life limits are increased. The FAA does not agree. The level of safety provided by the requirements of the proposed AD were established based upon compliance within 15,000 CIS after the effective date to the AD, and no additional data was provided by the commenter to show that an acceptable level of safety would be provided if the terminating action deadline were extended. In addition, further review with the type certificate holder indicated that future life limit increases are not anticipated for all affected engine models.

The same commenter requests that the compliance time for the mandatory terminating action be revised to indicate terminating actions are not required upon reaching 15,000 cycles-since-new (CSN), but instead that terminating actions are required after accumulating 15,000 additional CIS after the effective date of this AD. The commenter states that one operator has misinterpreted the existing wording as a hard limit of 15,000 CSN. The FAA agrees. The intent of the proposed AD was to require terminating action within 15,000 CIS accumulated after the effective date of the AD, and was not intended to impose a 15,000 CSN limit. The FAA has changed the wording in Table 2 accordingly.

One commenter requests that the chip detector check be done as part of the aircrew normal acceptance of terminating flight checklist. The commenter feels that precedence for aircrews performing simple go/no-go checks as part of an approved checklist can be found in AD 92-16-51 for the EMB120. The FAA partially agrees. The FAA agrees that the engine chip detector check can be performed by the aircrew, which is provided for in paragraph (b) of the AD. However, as further stated in paragraph (b), 91.417(a)(2)(v) of the Federal Aviation Regulations [14 CFR 91.417(a)(2)(v)] requires that for AD actions involving recurring inspections, records must be maintained, including the time and date when the next action is required. Accordingly, although the chip detector checks may be included in the aircrew daily checklist, this would not obviate the need for the operator to record each AD accomplishment, and no changes to the proposed rule are required.

One commenter requests that a new paragraph be added to the proposed AD to require a maintenance operational check (BITE) of the engine master chip detector. The check would be required to be done at the air carriers' first scheduled maintenance opportunity, but not to exceed seven calendar days. The commenter feels that this check would provide an equivalent of better level of safety than that proposed in the AD. The FAA does not agree. The FAA has no data that mandating operational checks of the engine master chip detector system would improve the level of safety provided by the proposed rule as currently written.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 1,650 engines of the affected design in the worldwide fleet. The FAA estimates that 1,075 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take about 0.5 work hours per engine to do the proposed checks, and that the average labor rate is $60 per work hour. Based on these figures, the total proposed AD cost impact on U.S. operators, for the initial check is estimated to be $32,250. In addition, the replacement air seal cost is approximately $2,400 per unit, so the total proposed material cost impact on U.S. operators is estimated to be $2,580,000. No additional labor is required for air seal replacement, as this will occur during normal exposure at shop visit. Based on these figures, the total proposed AD cost impact on U.S. operators is estimated to be $2,612,250.

This proposal 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 proposal.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

On December 7, 2000, the FAA was made aware of three incidents of fuel leaking from the temperature control valve assembly, located on the fuel flow divider assembly. An investigation by GE revealed that the vendor of the temperature control valve assembly end caps did not accomplish the required manufacturing process steps following heat treatment. This has caused the end caps to be susceptible to intergranular corrosion which can result in cracking. This condition, if not corrected, could cause an engine fire, leading to an in-flight engine shutdown and forced landing.

The FAA has reviewed and approved the technical contents of GE Company Alert Service Bulletin (ASB) CT58 73-A0080, dated February 13, 2001, that describes procedures for locating suspect fuel flow divider assemblies, part numbers (P/N's) 4050T82G02 or 4067T04G02, then locating temperature control assemblies P/N's 5040T77G02 or 5040T87G02 by affected serial number prefix, and then replacing fuel flow divider assemblies with serviceable parts.

Since an unsafe condition has been identified that is likely to exist or develop on other GE CT58 series turboshaft engines of the same type design, this AD is being issued to prevent fuel flow divider assembly fuel leakage, which could cause an engine fire, leading to an in-flight engine shutdown and forced landing. This AD requires locating suspect fuel flow divider assemblies by part number, then locating affected temperature control assemblies by part number and serial number prefix, and then replacing fuel flow divider assemblies with serviceable parts.

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 2001-NE-07-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 Cody, WY, in order to accommodate a new RNAV SIAP at Yellowstone Regional Airport, Cody, WY (66 FR 9988). This amendment provides Class E5 airspace at Cody, WY, to meet current criteria standards associated with the SIAP. 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 Cody, WY, in order to accommodate a new RNAV SIAP to the Yellowstone Regional Airport, Cody, WY. This amendment revises Class E5 airspace at Cody, WY, to meet current criteria standards associated with the RNAV SIAP. 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 operation sunder Instrument Flight Rules (IFR) at the Yellowstone Regional 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.

On September 28, 1999, the Commission adopted changes to Form 20-F under the Securities Exchange Act of 1934 and to Forms F-2 and F-3 under the Securities Act of 1933. Form 20-F is used by foreign private issuers to file registration statements and annual reports under the Securities Exchange Act of 1934, and Forms F-2 and F-3 are the short form registration statements used by foreign private issuers under the Securities Act of 1933. Subsequent to the adoption of the revised forms, questions arose regarding the requirements of the forms. Accordingly, the amendments to the forms set forth in this Release clarify the requirements regarding the age of financial statements, codify the long-standing practice of accepting two years audited income statement and statement of cash flows information if the financial statements are presented in accordance with United States Generally Accepted Accounting Principles (“U.S. GAAP”), and correct cross-references in Form 20-F and Forms F-2 and F-3. These changes will clarify language that could create confusion regarding the requirements of the forms. The changes are technical corrections that reflect long-standing practice, and do not alter the current requirements for companies filing on the forms.

In connection with the adoption of revisions to Form 20-F under the Securities Exchange Act of 1934, we adopted Item 8.A.4 and Instruction 1 to Item 8.A.4 regarding the age of financial statements in a registration statement. As revised, Instruction 1 to Item 8.A.4 incorrectly implies that audited financial information for a period of less than a full year satisfies the requirement that audited annual financial statements are no more than 15 months old at the time of the offering or listing. The correction deletes the last sentence in the first paragraph of Instruction 1 to Item 8.A.4 in order to remedy any potential confusion. This correction will clarify that a foreign private issuer cannot satisfy the 15-month audited annual financial statement requirement by filing financial statements that cover less than a full fiscal year, even if those statements are audited. Audited financial statements for a period of less than a full year, however, will continue to satisfy the requirement that the audited financial statements in an initial public offering are no more than 12 months old at the time of the filing, as stated in the last sentence of Item 8.A.4 of Form 20-F.

The technical amendments also add new Instruction 1 to Item 8.A.2 to expressly incorporate the reporting requirements for filers preparing financial statements in accordance with U.S. GAAP as previously set forth in Release No. 33-7053 (April 19, 1994), which was published in the Federal Register on April 26, 1994 (59 FR 21644). This practice has eased the reporting burden on qualifying filers, and the Commission did not intend to alter it by amending Form 20-F. As stated in the Release,

Additionally, the amendment conforms Item 3.A (Selected Financial Data) of Form 20-F by adding an instruction to include predecessor information as already required in Instruction 1 to Item 8 (Financial Information). Predecessor information has always been required for Selected Financial Data. Our omission of an express reference to this requirement in the instruction to Item 3.A was not intended to signal a change in policy. Finally, the amendment corrects various cross-references in Forms F-2 and F-3 under the Securities Act of 1933.

Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required when an agency, for good cause, finds “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  2 The correcting amendments to Form 20-F and Forms F-2 and F-3 are technical changes that (1) clarify that there is no change in the long-standing requirement for full period, audited financial statements; (2) incorporate the long-standing practice of accepting two years income statement and cash flow information for filers presenting financial information in accordance with U.S. GAAP; (3) reconcile the instructions to Item 3.A and Item 8 of Form 20-F; and (4) correct cross-references in the forms. For these reasons, the Commission finds that there is no need to publish notice of these amendments. 3

The APA also requires publication of a rule at least 30 days before its effective date unless the agency finds otherwise for good cause. 4 For the same reasons described with respect to opportunity for notice and comment, the Commission finds there is good cause for the amendments to take effect immediately.

Pharmacia and Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199, filed supplemental NADA 140-338 that provides for use of Naxcel® (ceftiofur sodium) sterile powder for injection by subcutaneous injection of a solution of reconstituted ceftiofur sodium powder in cattle for the treatment of several bacterial diseases.

Section 212(d)(4)(C) of the Immigration and Nationality Act (INA) provides the authority for the Secretary of State, acting jointly with the Attorney General, to waive the passport and/or visa requirement for a nonimmigrant who is in immediate and continuous transit through the United States and is using a carrier that has entered into a Transit Without Visa (TWOV) Agreement as provided in INA 233(c).

Since TWOV does not involve the issuance of a visa, the Department's role in the day-to-day administration of the TWOV program is minimal. Therefore, the Department's regulation at 22 CFR 41.2(i), for the most part, is merely a restatement of the INS regulation on the same subject. The Department does become involved, however, in the designation of those countries whose citizens are ineligible to utilize the TWOV. The current regulation provides a list of ineligible countries.

This rule removes Russia from the list of countries whose citizens cannot TWOV.

The Department and the INS have reviewed again the current list of ineligible countries and have determined that Russia can be removed from the list. In making the decision to remove Russia from the list the agencies took into consideration, in addition to the criteria specified in the regulation, comments received which expressed concern about the commercial impact caused by placing Russia on the list. Specifically, the withdrawal of TWOV privileges for Russia would discourage travel by Russian nationals and thus would have a serious negative impact on airline and port-of-entry revenues.

In the interim regulation the entry for “Serbia” is amended to read “Federal Republic of Yugoslavia”. On November 17, 2000, the United States recognized the Federal Republic of Yugoslavia as an independent state. Therefore, the former reference to Serbia and Montenegro is now listed as the Federal Republic of Yugoslavia.

This rule and the INS rule published elsewhere in this issue amend the list of countries found at 22 CFR 41.2(i) whose citizens the Department and the INS have determined are not eligible for the transit without visa (TWOV) program.

The Department is implementing this rule as an interim rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and 553(d)(3). Since this rule bestows a benefit for Russian nationals traveling to the U.S., the Department is implementing this rule immediately.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Although this rule is promulgated in conjunction with the Immigration and Naturalization Service, a domestic agency, the Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f) Regulatory Planning and Review. Therefore, in accordance with the letter to the Department of State of February 4, 1994 from the Director of Management and Budget, it does not require review by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or record-keeping requirements. The information collection requirement (Form OF-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.

This document removes two sections from the Procedure and Administration Regulations (26 CFR part 301) relating to penalties for underpayment of Federal tax deposits and overstated deposit claims under section 6656 of the Internal Revenue Code. The Omnibus Budget Reconciliation Act of 1989, Public Law 101-239 (103 Stat. 2106, 1989) amended section 6656, modifying the penalty rates relating to a failure to make a Federal tax deposit and removing the penalty relating to overstatement of Federal tax deposits. These changes have rendered §§ 301.6656-1 and 301.6656-2 obsolete.

Section 301.6656-1 was revised and § 301.6656-2 was added by TD 7925, published in the Federal Register for December 13, 1983 (LR-311-81, 48 FR 5453). Section 301.6656-2 was added to implement changes made by the Economic Recovery Tax Act of 1981, Public Law 97-34 (95 Stat. 172, 1981). Section 301.6656-1 was revised to remove outdated provisions relating to deposits made before January 1, 1970, based on the law in effect for those deposits.

Section 301.6656-1 reflects that, at the time it was revised, the penalty for underpayment of deposits was five percent of the amount of the underpayment without regard to the period during which the underpayment continued, absent reasonable cause. The Omnibus Budget Reconciliation Act of 1986, Public Law 99-509 (100 Stat. 1874, 1986) amended section 6656 to impose a ten percent penalty for underpayment. The Omnibus Budget Reconciliation Act of 1989 further amended this section to provide for a penalty that is equal to an applicable percentage of the amount of the underpayment based on the duration of the underpayment. This regulation does not reflect the most recent amendments to section 6656. Furthermore, all relevant information regarding underpayment penalties is put forth in the code section or in other published guidance. This regulation does not provide any additional guidance regarding the current underpayment penalties as set forth in section 6656 and therefore may be removed.

Section 301.6656-2 explains and expands upon former section 6656(b), Overstated Deposit Claims. The Omnibus Budget Reconciliation Act of 1989 removed former section 6656(b), making this regulation obsolete.

In addition, § 301.6656-3 is redesignated as § 301.6656-1. Further, §§ 1.6302-1(d) and 1.6302-2(d) of the Income Tax Regulations and §§ 31.6302-1(m)(1) and 31.6302(c)-4(a) of the Employment Tax Regulations are revised to remove references to the removed regulations under section 6656.

The final regulations §§ 301.6656-1 and 301.6656-2 published in the Federal Register for December 13, 1983 (LR-311-81, 48 FR 5453) are removed as of June 15, 2001.

It has been determined that the removal of these regulations is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. Because this rule merely removes regulatory provisions made obsolete by statute, prior notice and comment and a delayed effective date are unnecessary and contrary to the public interest. 5 U.S.C. 553(b)(B) and (d). Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

The principal author of the removal of the regulations is Robin M. Tuczak of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division).

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) a set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).

Accordingly, this amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during July 2001, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during July 2001, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during July 2001.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 6.60 percent for the first 20 years following the valuation date and 6.25 percent thereafter. These interest assumptions are unchanged from those in effect for June 2001.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 5.00 percent for the period during which a benefit is in pay status, 4.25 percent during the seven-year period directly preceding the benefit's placement in pay status, and 4.00 percent during any other years preceding the benefit's placement in pay status. These interest assumptions are unchanged from those in effect for June 2001.

For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during July 2001, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

66 FR 11242-43 (Order No. 1303); Order No. 1313 (May 15, 2001).

On February 7, 2001, the Commission issued a notice of proposed rulemaking proposing to delete rule 103(b) (39 CFR 3000.735.103(b)) from the Commission's standards of conduct. See order no. 1303 published in the Federal Register on Friday, February 23, 2001 (66 FR 11242-43).

Rule 103(b) was a de minimis rule. It provided that security interests held by a Commission employee that were valued below a certain amount would receive a different level of scrutiny for conflicts of interest than security interests valued above the specified amount. The notice observed that this provision had been superceded by, and become duplicative of, government-wide ethical standards and screening procedures. To conform the Commission's standards of conduct with government-wide ethics rules and financial disclosure procedures, the Commission proposed that rule 103(b) be deleted.

The notice provided a 30-day period from the date of its publication in the Federal Register for public comment. No comments were received. Accordingly, the proposal is adopted as proposed.

Rule 103(b) (39 CFR 3000.735.103(b)) is hereby deleted from the Commission's Standards of Conduct. Rule 103(a) will be redesignated rule 103.

It is ordered:

Paragraph (b) shall be deleted from rule 103 of the Commission's standards of conduct, effective upon publication of this order in the Federal Register .

Rule 103(a) of the Commission's standards of conduct shall be redesignated rule 103.

The acting secretary is directed to cause this final rule to appear in the Federal Register .

For the purpose of this document, we are giving meaning to certain words as follows: (a) The words “EPA,” “we,” “us” or “our” mean or refer to the United States Environmental Protection Agency. (b) The words State or Montana mean the State of Montana unless the context indicates otherwise. (c) The initials MDEQ mean the Montana Department of Environmental Quality.

In this document we are acting on five SIP revisions, submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000, which modify the Montana air quality rules. The revisions were necessary to make the rules consistent with Federal requirements, minimize repetition in the air quality rules, and clarify existing provisions. This document explains our action in response to the five submittals.

The September 19, 1997 submittal is a recodification (renumbering) of the State air quality rules. The December 10, 1997 submittal updates the incorporation by reference (IBR) of various documents in the State air quality rules. The April 14, 1999 submittal consists of various air quality rule revisions the State made between 1995 to 1998 but which had not previously been submitted to us. The December 6, 1999 submittal revises the State's open burning rules and adopts Yellowstone County's Local Regulation No.002—Open Burning. The March 3, 2000 submittal again updates the IBR of various documents in the State's rules and corrects references to an EPA Handbook for Air Pollution Measurement Systems.

We reviewed the five submittals and placed each rule (or section of a rule) into a category based on the changes that were made in the rule. The first category (see II.A. below) consists of those rules (or sections of rules) which have been recodified; there are no substantive changes in the text of the rules. We are approving these recodified rules. The second category (see II.B below) consists of those rules (or sections of rules) for which, in addition to being recodified, the text of the rule was modified. A discussion of whether or not the text changes are approved or disapproved is provided below. The third category (see II.C. below) includes those rules we cannot approve in the SIP. A discussion of why these rules cannot be approved in the SIP is provided below. Finally, the fourth category (see II.D. below) identifies those rules that we will act on at a later date.

We are approving the following sections of the Administrative Rules of Montana (ARM) because the rules have only been recodified; there are no substantive changes in the text of the rules. These recodified rules replace the prior codified rules in the federally approved SIP.

1. Sub-Chapter 1—General Provisions: ARM sections 17.8.101 (except 17.8.101(40)(a)), 17.8.105(1), 17.8.110(3), 17.8.111, 17.8.130-131, 17.8.140-142;

2. Sub-Chapter 3—Emission Standards: ARM sections 17.8.301, 17.8.304 (except 17.8.304(4)(f)), 17.8.308, 17.8.316, 17.8.320, 17.8.322-323, 17.8.324 (except 17.8.324(1)(c) and (2)(d)), 17.8.325-326, 17.8.330-331, 17.8.333-334;

3. Sub-Chapter 4—Stack Heights and Dispersion Techniques  1 : ARM 17.8.401 (except 17.8.401(4)(b), 17.8.402;

4. Sub-Chapter 6—Open Burning: ARM sections 17.8.605, 17.8.614-615;

5. Sub-Chapter 7—Permit, Construction, and Operation of Air Contaminant Sources  2 : ARM sections 17.8.701 (except 17.8.701(10)), 17.8.704(1), (3)-(5), 17.8.705(1)(a)-(n), 17.8.706-707, 17.8.710, 17.8.715-717, 17.8.730-732, 17.8.733 (except (17.8.733(1)(c)), 17.8.734;

6. Sub-Chapter 8—Prevention of Significant Deterioration  3 : ARM sections 17.8.801 (except 17.8.801(29)(a)), 17.8.804-809, 17.8.818-828;

7. Sub-Chapter 9—Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Non-attainment Areas: ARM sections 17.8.901 (except 17.8.901(14)(c) and 901(20)(a)), 17.8.904-906;

8. Sub-Chapter 10—Preconstruction Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Attainment or Unclassified Areas:  4 ARM sections 17.8.1001, 17.8.1004-1007; and

9. Sub-Chapter 11—Visibility Impact Assessment: ARM sections 17.8.1101(2) and (3), 17.8.1106(2), 17.8.1108, 17.8.1109(2) and (3), and 17.8.1110.

The second category consists of those rules (or sections of rules) for which, in addition to being recodified, the text of the rule has been modified. A discussion of the modification to each rule (or section of a rule) and whether or not the text changes are approved or disapproved is provided below. These recodified and modified rules, that we are approving, replace the prior codified rules in the federally approved SIP.

On October 6, 1995, June 21, 1996 and June 12, 1998, the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.101(40)(a) (formerly ARM 16.8.701(40)(a)). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definition we are approving ARM 17.8.101(40)(a) into the SIP.

On June 21, 1996, the State adopted revisions to its incorporation by reference of documents and other statutory references contained in the State's air quality rules, to update the references to the July 1995 edition of the Code of Federal Regulations (CFR), 1995 edition of the Montana Code Annotated (MCA), 1993 edition of the United States Code, and December 31, 1995 edition of the Administrative Rules of Montana. With this revision, the State deleted duplicative rules and combined existing incorporation by references into new rules. The State also made several non-substantive amendments for consistency, to delete unnecessary language and to make the language in the rules conform to current rule drafting requirements. The following sections of the rules were modified or added: ARM 17.8.102 (formerly ARM 16.8.710) and ARM 17.8.103(1)-(4) (formerly ARM 16.8.708(1)-(2)).

On August 22,1997, the State again adopted updates to its incorporation by reference section of the Administrative Rules of Montana to specify additional sources for obtaining federal material incorporated by reference, and to incorporate the July 1996 edition of the CFR and the December 31, 1996 edition of the Administrative Rules of Montana. The following sections were revised: ARM 17.8.102 and ARM 17.8.103(3).

On June 12, 1998, the State again adopted revisions to incorporate the July 1997 edition of the CFR, the 1997 edition of the MCA and the December 31, 1997 edition of the Administrative Rules of Montana into ARM 17.8.102.

On September 24, 1999, the State again adopted revisions to incorporate the July 1998 edition of the CFR and the December 31, 1998 edition of the Administrative Rules of Montana into ARM 17.8.102 and the reference to EPA's “Quality Assurance Handbook for Air Pollution Measurement Systems” into ARM 17.8.103.

We are approving ARM sections 17.8.102 and 17.8.103(1)-(4) into the SIP.

On June 21, 1996 the State adopted a minor revision in ARM 17.8.105(2) (formerly ARM 16.8.704(2)) to include a reference to another State rule. In addition, on June 21, 1996 the State deleted and did not replace ARM 16.8.704(3). State rule ARM 16.8.704(3) incorporated by reference 40 CFR part 51, Appendix P. This incorporation was duplicative of ARM 16.8.708(1)(d) (now ARM 17.8.103(1)(d)) which also incorporated by reference 40 CFR part 51, Appendix P. We are approving the revision of ARM 17.8.105(2) into the SIP and the deletion of ARM 16.8.704(3) from the SIP.

On September 24, 1999 the State adopted revisions to ARM 17.8.106 to correct the reference to EPA's “Quality Assurance Handbook for Air Pollution Measurement Systems.” We are approving the revisions to ARM 17.8.106 into the SIP.

On October 6, 1995, the State adopted revisions to its malfunction rule in ARM 17.8.110(7) (formerly ARM 16.8.705(7)). The revised State rule allows a facility to respond to a malfunction of equipment on a temporary basis without obtaining an air quality permit. Because the revisions require that if the temporary replacement equipment constitutes a major stationary source under sub-chapters 8, 9, and 10, then the source must comply with the requirements of the applicable sub-chapter, we believe the revision is acceptable. In addition to the temporary replacement revisions, on October 6, 1995 the State also made several editorial and clarifying revisions in the malfunction rule, ARM 17.8.110(1), (2), (4), (5) and (6) (formerly ARM 16.8.705(1), (2), (4), (5) and (6)). We are approving the revisions to ARM 17.8.110(1), (2), (4), (5), (6), and (7) into the SIP.

On May 19, 1995, the State adopted revisions to add ARM 17.8.302(1)(b) and (c) (formerly ARM 16.8.1429(2)(b) and (c)). This revision pertains to revisions in the Kraft Pulp Mill Rule, discussed in section II.D.1 below.

On August 9, 1996 the State adopted revisions reformatting the incorporation by reference of documents in ARM 17.8.302(1)(a)-(h) and (2)-(4) and adding ARM 17.8.302(1)(i) (formerly ARM 16.8.1429(1)(a)-(h) and (2)-(4) and 16.8.1429(1)(i), respectively). State rule ARM 17.8.302(1)(i) incorporates by reference 40 CFR part 63.

On June 20, 1997, the State adopted revisions to ARM 17.8.302(1) by adding 17.8.302(1)(j). State rule ARM 17.8.302(1)(j) incorporates by reference 40 CFR part 60, subpart Cc.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.302(3) was revised.

On June 12, 1998 the State adopted more revisions to update the incorporation by reference of documents in ARM 17.8.302(1)(e) and (i). State rule ARM 17.8.302(1)(e) was revised to incorporate by reference our final rule published on October 7, 1997 (62 FR 52399), entitled “Determination of Total Fluoride Emissions from Selected Sources of Primary Aluminum Production Facilities.” State rule ARM 17.8.302(1)(i) was revised to incorporate by reference our final rule published on October 7, 1997 (62 FR 52407), entitled “National Emission Standards for Hazardous Air Pollutants from Primary Reduction Facilities.”

On November 6, 1998 the State adopted revisions to ARM 17.8.302(1) by adding 302(1)(k). State rule ARM 17.8.302(1)(k) incorporates by reference 40 CFR part 60, subpart Ce.

On September 24, 1999, the State adopted more revisions to ARM 17.8.302(1) to remove superfluous language since a more current version of the CFR is being incorporated elsewhere. As a result, the September 24, 1999 revision deleted some of the prior adopted revisions mentioned above.

We are approving the ARM 17.8.302(1)-(4) into the SIP.

On May 19, 1995, the State adopted revisions to its rules by adding ARM 17.8.304(4)(f) (formerly 16.8.1404(4)(f)). This pertains to opacity from recovery furnaces at Kraft Pulp Mills. As indicated in section II.D.1 below, we will act on the revisions pertaining to the Kraft Pulp Mill Rule at a later date. Therefore, we are not approving ARM 17.8.304(4)(f) into the SIP at this time.

On October 6, 1995, the State adopted revisions to the particulate emission limits for fuel burning equipment and industrial processes (ARM 17.8.309 and 17.8.310, formerly, ARM 16.8.1402 and 16.8.1403, respectively). The State re-wrote and re-formatted the provisions in ARM 17.8.309(1) and (2) (formerly ARM 16.8.1402(1) and (2)) and ARM 17.8.310(1) and (2) (formerly ARM 16.8.1403(1) and (2)). We believe the revisions to these sections do not change the stringency of the rule and are approving them. However, the State added provisions to the rules with ARM 17.8.309(5) and 17.8.310(3)(e) (formerly ARM 16.8.1402(5) and ARM 16.8.1403(3)(e)). State rules ARM 17.8.309(5)(b) and 17.8.310(3)(e) provide an exception that the rules do “ * * * not apply to particulate matter emitted from * * * sources constructed after March 16, 1979, that have a specific particulate emission limitation contained in an air quality preconstruction permit obtained under ARM Title 17, Chapter 8, subchapter 7, a court order, board order or department order, or a process specific rule.” We interpret this language as allowing terms of a construction permit to override a requirement that has been approved as part of the SIP. We cannot approve this part of the provision into the SIP, as it would allow the State to change a SIP requirement through the issuance of a permit. Pursuant to section 110 of the Act, to change a requirement of the SIP, the State must adopt a SIP revision and obtain our approval of the revision. Alternatively, EPA's March 5, 1996 “White Paper Number 2 for Improved Implementation of the part 70 Operating Permits Program” explains how States can streamline multiple applicable requirements for the same emission unit under the part 70 permit process. Such process must ensure that the streamlined emission limit is at least as stringent as all applicable emission limits for an emissions unit. This streamlining can only be allowed through the part 70 permit process, in which we have the opportunity to review the streamlined requirements and the ability to veto the part 70 permit if the streamlined requirement is not as stringent as each separate applicable requirement. Because we do not have veto authority under the Prevention of Significant Deterioration (PSD) or minor source permitting programs, we do not allow the State to streamline requirements through either of those construction permitting programs. Therefore, we are approving ARM 17.8.309 and ARM 17.8.310 into the SIP, except that we are disapproving ARM 17.8.309(5)(b) and 17.8.310(3)(e).

On December 6, 1996, the State adopted a new numbering system for the air rules. We are not approving of ARM 17.8.324(1)(c) and (2)(d) (formerly ARM 16.8.1425(1)(c) and (2)(d), respectively). We previously disapproved these rules under the prior codification. See July 18, 1995 (60 FR 36768) notice and 40 CFR 52.1384(c). Our prior disapproval also applies to the new codification. We are modifying 40 CFR 52.1384(c) accordingly.

As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.332(1) (formerly ARM 16.8.1503(1)) was modified and ARM 16.8.1503(2) was deleted. State rule ARM 16.8.1503(2) incorporated by reference method 9 of appendix A of 40 CFR part 60. This was duplicative of the incorporation by reference material being added with ARM 16.8.1507(1)(a). On November 7, 1996 the state repealed ARM 16.8.1507 because, with the recodification of the rules, subchapters 14 and 15 were combined, making ARM 16.8.1507 unnecessary since subchapter 14 already had a rule incorporating by reference the same documents being incorporated in subchapter 15. Therefore, the material incorporated by reference in ARM 16.8.1503(2) is now incorporated by reference at ARM 17.8.302(1)(b). We are approving the revision of ARM 17.8.332 into the SIP and the deletion of ARM 16.8.1503(2) from the SIP.

On January 20, 1995, the State adopted revisions to several sections of the stack height rules to update incorrect citations. The following rules were revised: ARM 17.8.401(4)(b) and 17.8.403(1) (formerly, ARM 16.8.1204(4)(b) and 16.8.1206(1), respectively). We are approving ARM 17.8.401 and 17.8.403 into the SIP.

On January 20, 1995, the State adopted revisions to its Open Burning Rules (ARM 17.8.604 and 17.8.612(6) (formerly ARM 16.8.1302 and 16.8.1307(6), respectively)). The State revised the rules to correct incorrect wording, insert a missing rule reference and correct a reference to the Division.

As indicated in the General Provisions section in II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. The following sections were modified: ARM 17.8.602 (formerly ARM 16.8.1311) and ARM 17.8.604(1)-(2) (formerly ARM 16.8.1302(1)-(3)).

As indicated in the General Provisions section in II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.602(3) was revised

On July 2, 1999, the State revised ARM 17.8.612(6) to update the MDEQ's telephone number.

We are approving ARM sections 17.8.602, 17.8.604 and 17.8.612(6) into the SIP.

On October 6, 1995 the State adopted revisions to its Open Burning Rules (ARM 17.8.601 and 17.8.606 (formerly ARM 16.8.1301 and 16.8.1303, respectively)). The revisions allow minor open burners in eastern Montana to conduct essential agricultural open burning and prescribed wildland open burning without a permit during December, January and February if they notify the department prior to the burning. Prior to these changes, minor open burners in eastern Montana had to request department permission to conduct such open burning. We are approving the revisions to the open burning rule because we do not believe the revisions will jeopardize existing particulate matter (particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10)) nonattainment areas or interfere with attainment and maintenance of the PM-10 NAAQS or increment in Montana. All but one of the State's PM-10 nonattainment areas are in the western region of the State. Although there is one PM-10 nonattainment area in the eastern Montana open burning zone, the difference in the geography and weather patterns of the eastern part of the State should assure that the revisions made in the open burning rule will not jeopardize this one PM-10 nonattainment area. For these same reasons, we believe these rule changes will not interfere with attainment and maintenance of the PM-10 NAAQS or increment in Montana. Therefore, we are approving ARM 17.8.601 and 17.8.606 into the SIP.

On July 2, 1999, the State adopted revisions to the Open Burning Rules (ARM 17.8.601, 17.8.606, 17.8.610, 17.8.611, 17.8.612, 17.8.613). The revisions (1) update the MDEQ's telephone number; (2) remove reference to the national weather service office as a source of forecasts of ventilation conditions and in its place indicate that ventilation conditions may be obtained from MDEQ; (3) allow open burning permits to be issued for periods other than one year; and (4) require additional information be submitted for emergency open burning permits.

We are approving the revisions to ARM 17.8.601, 17.8.606, 17.8.610, 17.8.611, 17.8.612, and 17.8.613, adopted on July 2, 1999, into the SIP.

On August 8, 1996, the State adopted a definition for “negligible risk” (ARM 17.8.701(10), formerly ARM 16.8.1101(10)) and updated the incorporation by references in ARM 17.8.702 (formerly ARM 16.8.1120). As indicated in an April 5, 2000 letter from the State to EPA, the definition of “negligible risk,” at ARM 17.8.701(10) and a document incorporated by reference in ARM 17.8.702(1)(f) were not intended to be incorporated into the SIP.

As indicated in the General Provisions section in II.B.1(b) above, on August 22, 1997, the State adopted updates to its incorporation by reference of documents. State rule ARM 17.8.702(3) was revised.

We are approving ARM 17.8.702 (except for ARM 17.8.702(1)(f)) into the SIP. We are not approving ARM 17.8.701(10) nor ARM 17.8.702(1)(f) into the SIP.

On January 20, 1995, the State adopted revisions to several sections of the permitting rules to clarify the rules and update incorrect citations. The following rules were revised: ARM 17.8.704(2), 17.8.705(1)(a), 17.8.720(2)) (formerly, ARM 16.8.1119(2), 16.8.1102(1)(o), and 16.8.1107(2), respectively). We are approving ARM 17.8.704(2), 17.8.705(1)(o), and 17.8.720(2) into the SIP.

On October 6, 1995, the State adopted revisions to its permitting rule (in ARM 17.8.705(1)(p) (formerly ARM 16.8.1102(1)(p)) to coincide with revisions to its malfunction rule. As discussed in section II.B.1(e) above, we believe the revision to the malfunction rule is acceptable. Therefore, we are approving ARM 17.8.705(1)(p) into the SIP.

On April 12, 1996, the State adopted revisions to ARM 17.8.720 (formerly ARM 16.8.1107) to allow an applicant to request an extension of the 60-day deadline for the department to issue a permit; to allow the department more time to issue a permit; to correct grammatical and citations in the rule; and to improve clarity of the rule. We are approving ARM 17.8.720 into the SIP.

On October 6, 1995, June 21, 1996 and June 12, 1998 the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.801(29)(a) (formerly 16.8.945(29)(a)). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definition, we are approving ARM 17.8.801(29)(a) into the SIP.

As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.802 (formerly ARM 16.8.946) was revised.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rules ARM 17.8.802(1)(g) and (3) were revised.

We are approving ARM 17.8.802 into the SIP.

On October 6, 1995, June 21, 1996 and June 12, 1998 the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.901(20)(a) (formerly ARM 16.8.1701(20)(a). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definitions, we are approving ARM 17.8.901(20)(a) into the SIP.

As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. The following sections were modified: ARM 17.8.901(14)(c) (formerly 16.8.1701(14)(c)) and ARM 17.8.902(1)-(5) (formerly ARM 16.8.1702(1)-(2)).

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.902(3) was revised.

We are approving ARM 17.8.901(14)(c) and 17.8.902 into the SIP.

As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.1002(1)-(5) (formerly ARM 16.8.1802(1)-(2)) was revised.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.1002(3) was revised.

We are approving ARM 17.8.1002 into the SIP.

On January 20, 1995, the State adopted revisions to several sections of the permitting rules to clarify the rules and update incorrect citations. The following rules were revised: ARM 17.8.1004 and 17.8.1005 (formerly, ARM 16.8.1803 and 16.8.1804, respectively). We are approving ARM 17.8.1004 and 17.8.1005 into the SIP.

As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to is incorporation by reference of documents. The following sections were modified: ARM 17.8.1102 (formerly ARM 16.8.1009); ARM 17.8.1103(1) (formerly ARM 16.8.1001) and ARM 17.8.1107(1) (formerly ARM 16.8.1004(1)).

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. The following sections were revised: ARM 17.8.1102(1)(b) and (3).

Because of the reformatting of the incorporation by reference of documents, on June 21, 1996 the State deleted and did not replace the following sections: ARM 16.8.1001(2) and 16.8.1004(2).

We are approving ARM 17.8.1102, 1103 and 1107 into the SIP and the deletion of ARM 16.8.1001(2) and 16.8.1004(2) from the SIP.

On January 20, 1995 the State adopted revisions to several sections of the visibility rules to update incorrect citations. The following rules were revised: ARM 17.8.1101(1), 17.8.1103(1), 17.8.1106(1), 17.8.1109(1), and 17.8.1111 (formerly, ARM 16.8.1002(1), 16.8.1001(1), 16.8.1003(1), 16.8.1006(1), and 16.8.1008, respectively). We are approving ARM 17.8.1101(1), 17.8.1103(1), 17.8.1106(1), 17.8.1109(1), and 17.8.1111 into the SIP.

We cannot approve certain types of rules into the SIP. A listing of each rule (or section of a rule) we are not approving in the SIP and a discussion of why we believe we can not approve that rule into the SIP is provided below:

We believe we have no legal basis in the Act for approving Montana's odor control rule ARM 17.8.315 (formerly ARM 16.8.1427) and making it Federally enforceable because odor control provisions are not generally related to attainment or maintenance of the National Ambient Air Quality Standards (NAAQS). Therefore, we are not taking action to incorporate ARM 17.8.315 into the SIP.

ARM 17.8.340(1) through (3) (formerly ARM 16.8.1423(1) through (3)) is the rule the State uses to implement our new source performance standards (NSPS) in 40 CFR part 60. On May 16, 2001, we issued a letter delegating the responsibility for all sources located, or to be located, in the State of Montana subject to the NSPS promulgated in 40 CFR part 60. The categories of new stationary sources covered by this delegation are all NSPS subparts in 40 CFR part 60, as in effect on July 1, 1998, except the subparts Cb, Cc, Cd and Ce. Given that the State now has delegation of authority for NSPS in 40 CFR part 60, pursuant to 110(k)(6) of the Act, we are removing the old codification ARM 16.8.1423(1) through (3) from the SIP and not approving the new codification of ARM 17.8.340(1) through (3) into the SIP. We are updating the table in 40 CFR 60.4(c) to indicate that the 40 CFR part 60 NSPS are now delegated to the State and revising EPA's address and Montana's and other States' agency name and address in 40 CFR 60.4(a) and (b)(BB), (b)(JJ) and (b)(TT).

The May 16, 2001 letter of delegation to the State follows:

On June 20, 1997, the State adopted rules for Municipal Solid Waste Landfill Facilities. We believe we have no legal basis in the Act for approving Montana's rule for Municipal Solid Waste Landfill Facilities, ARM 17.8.340(4), into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.340(4) into the SIP. However, on July 8, 1998 (63 FR 36858), we did approve these rules as meeting section 111(d) of the Act. See 40 CFR 62.6600-6602.

On October 16, 1998, the State adopted rules for Hospital/Medical/Infectious Waste Incinerator Facilities. We believe we have no legal basis in the Act for approving Montana's rule for Hospital/Medical/Infectious Waste Incinerator Facilities, ARM 17.8.340(5), into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.340(5) into the SIP. However, on June 22, 2000 (65 FR 38732), we did approve these rules as meeting section 111(d) of the Act. See 40 CFR 62.6610-6612.

ARM 17.8.341 (formerly ARM 16.8.1424) is the rule the State uses to implement our national emission standards for hazardous air pollutants (NESHAPs) regulations in 40 CFR part 61. On May 16, 2000, we issued a letter indicating that we were delegating the authority of 40 CFR part 61 to the State. Given that the State now has delegation of authority for NESHAPs in 40 CFR part 61, pursuant to 110(k)(6) of the Act, we are removing the old codification ARM 16.8.1424 from the SIP and not approving the new codification of ARM 17.8.341 into the SIP. We are updating the table in 40 CFR 61.04(c)(8) to indicate that the 40 CFR part 61 NESHAPs are now delegated to the State and revising EPA's address and Montana's and other States' agency name and address in 40 CFR 61.04(a) and (b)(G), (b)(BB), (b)(JJ), (b)(TT) and (b)(ZZ).

On August 9, 1996, the State adopted ARM 17.8.342 (formerly ARM 16.8.1431) for the Maximum Achievable Control Technology (MACT) standards (i.e., 40 CFR part 63). We believe we have no legal basis in the Act for approving Montana's MACT rules into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.342 into the SIP. However, on May 16, 2000, we issued a letter indicating that we were delegating the authority of 40 CFR part 63 to the State.

On January 20, 1995, the State adopted revisions to ARM 17.8.1204 (formerly ARM 16.8.2004) and the Governor of Montana submitted these revisions on April 14, 1999. Subchapter 12 pertains to the Operating Permit Program. We believe we have no legal basis in the Act for approving any of the provisions of the operating permit program into the SIP. Therefore, we are not taking action to incorporate ARM 17.8.1204 into the SIP. However, we fully approved Montana's Title V program on December 22, 2000, 65 FR 80785.

Category 4 consists of those rules that we will act on at a later date.

(1) On April 14, 1999, the Governor of Montana submitted revisions to the Incorporation by Reference Rule, Visible Air Contaminant Rule and Kraft Pulp Mill Rule (ARM 17.8.302(1)(b) and (c), 17.8.304(4)(f) and 17.8.321 (formerly ARM 16.8.1429(2)(b) and (c), 16.8.1404(4)(f) and 16.8.1413, respectively)) which had been adopted by the State on May 19, 1995 and December 11, 1998. The revisions to the Kraft Pulp Mill Rule were adopted both prior to and after the air quality rules were recodified. As discussed earlier in section II.B.2(a), we are approving the revisions to ARM 17.8.302(1). We will act on the revisions and the recodification of ARM 17.8.304(4)(f) and 17.8.321 at a later date. These revisions are not being approved as part of SIP at this time. The prior codified Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 13, 1972, remains in the SIP.

(2) On December 8, 1997, the Governor of Montana submitted revisions to the Incinerator Rule, ARM 17.8.316, which were adopted by the State on June 11, 1997. The revisions to the Incinerator rule were adopted after the recodification of the air quality rules. We are approving the recodification, as indicated in Section II.A.2 above, but we will act on the June 11, 1997 revisions to the Incinerator Rule at a later date.

(3) The September 19, 1997 submittal contained Sub-Chapter 13, Conformity. We will act on the Conformity sub-chapter at a later date.

(4) The September 19, 1997 recodification contains paragraphs ARM 17.8.705(1)(q), 17.8.708, and 17.8.733(1)(c) (formerly ARM 16.8.1102(1)(q), 16.8.1121 and 16.8.1113(1)(c), respectively) that had been adopted by the State on August 8, 1996 but had not been submitted to us prior to the recodification. Revisions to ARM 17.8.705(1) and (2), 17.8.708 (repealed), and 17.8.733(1)(b) and (c) were subsequently adopted by the State on May 14, 1999. The August 8, 1996 and May 14, 1999 adopted revisions were submitted to EPA on August 26, 1999. With this document we are not approving ARM 17.8.705(1)(q), 17.8.708 and 17.8.733(1)(c), which were submitted with the recodification. We are addressing the August 26, 1999 submittal along with these recodified rules in a separate rulemaking action.

(1) On June 21, 1996, the State repealed ARM 16.8.1419, Fluoride Emissions—Phosphate Processing. Previously we had incorporated this provision into the Federally approved SIP. Since fluoride emissions are not generally related to attainment or maintenance of the NAAQS, we are approving the deletion of ARM 16.8.1419 from the SIP. In a February 14, 2001 letter, the State indicated that ARM 16.8.1419 was not developed to satisfy the Clean Air Act section 111(d) requirements and that there are no phosphate fertilizer plants in Montana that meet the definition of affected facility under any of the 40 CFR part 60, subparts T, U, V, W or X, and that there are no phosphate fertilizer plants in Montana that meet the definition of affected facility under any of the subparts T, U, V, W, or X, constructed before October 22, 1974, and that have not reconstructed or modified since 1974. We are revising 40 CFR Part 62, Subpart BB to indicate that Montana has certified that it has no such sources.

(2) On November 7, 1996, the State repealed ARM 16.8.301, Standing (pertaining to a rehearing before the Board), because it merely refers the reader to existing statutory requirements, and ARM 16.8.401-404, Emergency Procedures (pertaining to Board hearings on emergency orders of the department), because most of the provisions repeat statutory language. Previously we had incorporated these provisions into the Federally approved SIP. Since these provisions are not generally related to attainment or maintenance of the NAAQS, we are approving the deletion of ARM 16.8.301 and 16.8.401-404 from the SIP.

(3) On November 7, 1996, the State repealed ARM 16.8.1104, Existing Sources and Stacks—Permit Application Requirements (requiring existing source constructed after November 23, 1968, to apply for an air quality permit), because the State believed the rule was no longer necessary; all such facilities have either applied for an air quality permit or have altered the facility in a manner that would require an air quality permit under other provisions of the department's air quality rules. Previously we had incorporated ARM 16.8.1104 into the Federally approved SIP. We agree with the State's assessment and are approving the deletion of ARM 16.8.1104 from the SIP.

(4) The April 14, 1999 submittal contained rule ARM 17.4.101 pertaining to alternative public hearing procedures. According to the State's April 5, 2000 letter to EPA, the State will be rescinding this rule. We are not acting on rule ARM 17.4.101.

(5) The State's September 19, 1997 submittal also contained the State Emergency Episode Avoidance Plan (EEAP). The same EEAP was submitted on July 8, 1997. We approved the July 8, 1997 submittal on December 6, 1999 (64 FR 68034). Since the September 19, 1997 EEAP merely duplicates the July 8, 1997 EEAP, and we have already approved the July 8, 1997 EEAP, we are not acting on the September 19, 1997 submittal.

(6) On August 22, 1997, the Board revised ARM 17.8.1202 (formerly ARM 16.8.2003). The Governor's April 14, 1999 letter requested that ARM 17.8.1202 be rescinded. Subchapter 12 pertains to the Operating Permit Program. We have no legal basis in the Act for approving any of the provisions of the operating permit program into the SIP. However, on October 23, 1996 (61 FR 54946) we inadvertently incorporated ARM 16.8.2003 (now ARM 17.8.1202) into the SIP. Since approval of ARM 16.8.2003 into the SIP was in error, we are removing ARM 16.8.2003 from the SIP pursuant to section 110(k)(6) of the Act. Also, we fully approved Montana's Title V program on December 22, 2000, 65 FR 80785.

(7) On December 6, 1999, the Governor of Montana submitted a regulation from the Yellowstone County Air Pollution Control (YCAPC) program. The submittal consists solely of Regulation No. 002—Open Burning Restrictions. We believe it is appropriate to incorporate local air pollution control programs in the SIP if the program is needed for attainment and maintenance of any National Ambient Air Quality Standard (NAAQS). The State's Group II PM-10 SIP relies on many rules, including the State's open burning rules, to assure maintenance of the PM-10 NAAQS. We approved the Group II PM-10 SIP on January 20, 1994 (59 FR 2988). By approving the YCAPC's Regulation No. 002, the State has given Yellowstone County the responsibility to ensure that State open burning rules are met. Since the County is implementing measures that the State is relying upon to assure that the PM-10 SIP NAAQS are maintained, we believe it is appropriate to incorporate the county rules in the SIP. In addition, including the county rules in the SIP will make the county-issued open burning permits federally enforceable, further assuring the effectiveness of the PM-10 plan.

On December 23, 1992, then Montana Governor Stan Stephens submitted a SIP revision regarding the YCAPC major rule revisions. To date we have not acted on the December 23, 1992 submittal. The December 6, 1999 letter from Governor Marc Racicot indicates that the recent modifications to the YCAPC's program supercede the 1992 submittal and, therefore, rescinds the December 23, 1992 submittal. Accordingly, we are acting to approve the December 6, 1999 submittal of the YCAPC open burning program.

We are approving the revisions and recodification to the Administrative Rules of Montana submitted by the Governor on September 19, 1997, December 10, 1997, April 14, 1999 December 6, 1999 and March 3, 2000 except for the following provisions that we are not acting on, disapproving, or will act upon at a later date. The recodification and revisions that we are approving replace the prior SIP approved regulations (except that the Kraft Pulp Mill Rule, ARM 16.8.1413, effective 12/13/72, remains in the approved SIP). We are also approving into the SIP Yellowstone County's Local Regulation No.002—Open Burning. The provisions that we are not acting on because these rules are not appropriate to be in the SIP or because the State does not want them in the SIP include: ARM sections 17.4.101, 17.8.315, 17.8.340, 17.8.341, 17.8.342, 17.8.701(10) and 17.8.702(1)(f), and 17.8.1204.

The provisions that we are disapproving include: ARM 17.8.309(5)(b), 17.8.310(3)(e), and 17.8.324(1)(c) and 2(d).

The provisions that we will act upon at a later date include: ARM sections 17.8.304(4)(f), revisions to ARM 17.8.316 (adopted on 6/11/97), 17.8.321, 17.8.705(1)(q), 17.8.708, 17.8.733(1)(c), and 17.8.1301-1313. The provisions that we are removing from the SIP include: ARM sections 16.8.301, 16.8.401-404, 16.8.704(3), 16.8.1001(2), 16.8.1004(2), 16.8.1104, 16.8.1419, 16.8.1423, 16.8.1424, 16.8.1503(2) and 16.8.2003.

Finally, we are announcing the delegation of authority for NSPS implementation and enforcement to the State and updating the tables in 40 CFR 60.4(c) and 40 CFR 61.04(c)(8) to indicate that the 40 CFR part 60 NSPS and 40 CFR part 61 NESHAPs are now delegated to the State and revising EPA's address and Montana's and other States' agency name and address in 40 CFR 60.4(a), (b)(BB), (b)(JJ) and (b)(TT), and 40 CFR 61.04(a), (b)(G), (b)(BB), (b)(JJ), (b)(TT) and (b)(ZZ).

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

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

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

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

This final rule does not have tribal implications. It 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. This action does not involve or impose any requirements that affect Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.

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

This partial approval rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and 301 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Moreover, EPA's partial disapproval rule will not have a significant impact on a substantial number of small entities. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, as explained in this action, the submission does not meet the requirements of the Clean Air Act and EPA cannot approve the submission. EPA has no option but to partially disapprove the submittal. The partial disapproval will not affect any existing State requirements applicable to the entities. Federal disapproval of a State submittal does not affect its State enforceability.

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we,” “us,” or “our” are used, we mean the Environmental Protection Agency (EPA).

We are approving the Governor's submittal of May 10, 2000, that requests redesignation for the Telluride and Pagosa Springs nonattainment areas to attainment for the 1987 PM 10 standards. Included in Colorado's submittal are changes to the Ambient Air Quality Standards Regulation and State Implementation Plan Specific Regulations for Nonattainment—Attainment/Maintenance Areas (Local Elements) Regulation (SIP Specific Regulation) which we are approving, under section 110 of the CAA, into Colorado's SIP. We are also approving the maintenance plans for the Telluride and Pagosa Springs PM 10 nonattainment areas, which were submitted with Colorado's May 10, 2000 redesignation requests. We are approving these requests and maintenance plans because Colorado has adequately addressed all of the requirements of the CAA for redesignation to attainment applicable to the Telluride and Pagosa Springs PM 10 nonattainment areas. Upon the effective date of this action, the Telluride and Pagosa Springs areas' designation status under 40 CFR part 81 will be revised to attainment.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments be filed. This rule will be effective August 14, 2001 without further notice unless the Agency receives adverse comments by July 16, 2001. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In order for a nonattainment area to be redesignated to attainment, the following conditions in section 107(d)(3)(E) of the CAA must be met:

(i) We must determine that the area has attained the NAAQS;

(ii) The applicable implementation plan for the area must be fully approved under section 110(k) of the CAA;

(iii) We must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) We must fully approve a maintenance plan for the area as meeting the requirements of CAA section 175A; and,

(v) The State containing such an area must meet all requirements applicable to the area under section 110 and part D of the CAA.

Our September 4, 1992 guidance entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” outlines how to assess the adequacy of redesignation requests against the conditions listed above.

On May 10, 2000, the Governor of Colorado submitted a revision to the SIP for the Telluride and Pagosa Springs area and a request that we redesignate these areas to attainment for PM 10 . The following is a brief discussion of how Colorado's redesignation requests and maintenance plans meet the requirements of the CAA for redesignation of the Telluride and Pagosa Springs areas to attainment for PM 10 .

A state must demonstrate that an area has attained the PM 10 NAAQS through submittal of ambient air quality data from an ambient air monitoring network representing maximum PM 10 concentrations. The data, which must be quality assured and recorded in the Aerometric Information Retrieval System (AIRS), must show that the average annual number of expected exceedances for the area is less than or equal to 1.0, pursuant to 40 CFR 50.6. In making this showing, the three most recent years of complete air quality data must be used.

Colorado operates one PM 10 monitoring site in the Telluride PM 10 nonattainment area. Colorado submitted ambient air quality data from the monitoring site which demonstrate that the area has attained the PM 10 NAAQS. These air quality data were quality-assured and placed in AIRS. An exceedance of the 24-hour PM 10 NAAQS was recorded in 1994 and 1999 but neither exceedance resulted in a violation of the standard ( i.e., the 3-year average of estimated exceedances remained below 1.0 per year). These two were the only recorded exceedances since PM 10 monitoring began in Telluride in 1987. The annual PM 10 NAAQS has never been exceeded in Telluride. The three most recent years of data for the area (1997-1999) are complete (i.e., data are available for at least 75% of the scheduled PM 10 samples per quarter) with no recorded violations. We believe that Colorado has adequately demonstrated, through ambient air quality data, that the PM 10 NAAQS have been attained in the Telluride area.

Colorado also operates one PM 10 monitoring site in the Pagosa Springs PM 10 nonattainment area. Colorado submitted ambient air quality data from the monitoring site which demonstrate that the area has attained the PM 10 NAAQS. These air quality data were quality assured and placed in AIRS. Two exceedances of the 24-hour PM 10 NAAQS were measured on December 21 and again on December 29, 1994. However, the 3-year average of estimated exceedances remained below 1.0 (per year) and therefore did not result in a violation of the 24-hour PM 10 NAAQS. The three most recent years of data for the area (1997-1999) are complete ( i.e., data are available for at least 75% of the scheduled PM 10 samples per quarter) with no recorded violations. While the area recently recorded an exceedance of the 24-hour PM 10 NAAQS on June 12, 2000, this exceedance did not result in a violation of the standard and, thus, the area is still eligible for redesignation to attainment. The annual PM 10 NAAQS has never been exceeded in Pagosa Springs. We believe that Colorado has adequately demonstrated, through ambient air quality data, that the PM 10 NAAQS have been attained in the Pagosa Springs area.

Those States containing initial moderate PM 10 nonattainment areas were required by the 1990 amendments to the CAA to submit a SIP by November 15, 1991 which demonstrated attainment of the PM 10 NAAQS by December 31, 1994. To approve a redesignation request, the SIP for the area must be fully approved under section 110(k) and must satisfy all requirements that apply to that area. We partially/conditionally approved the PM 10 SIP for Telluride on September 19, 1994 (59 FR 47807) and fully approved it, with the adoption of new street sanding requirements, on October 4, 1996 (61 FR 51784). We approved the PM 10 SIP for Pagosa Springs on May 19, 1994 (59 FR 26126). These PM 10 SIPs for Telluride and Pagosa Springs were approved as meeting the moderate PM 10 nonattainment plan requirements that were due to EPA on November 15, 1991.

A state must be able to reasonably attribute the improvement in air quality to emission reductions which are permanent and enforceable. The primary sources of PM 10 emissions in the Telluride area are re-entrained road dust (from highways, paved roads, chip sealed roads, and unpaved roads) and woodburning. In the mid-1980's, Colorado adopted emission standards for all new woodburning stoves and fireplace inserts in Air Quality Control Commission Regulation No. 4. These regulations were most recently approved by us into the SIP on August 24, 1994. In addition, the town of Telluride and San Miguel County have adopted wood and coal burning emission reduction measures which: (1) Require the installation of cleaner-burning devices in existing dwellings which have pre-existing solid fuel burning devices; (2) prohibit solid fuel burning devices in new construction; (3) ban coal burning; and (4) limit the total number of fireplaces and woodstoves in the nonattainment area. These wood and coal burning controls were adopted and implemented throughout the 1980's and 1990's and were approved by EPA into the SIP in 1994. In addition, Telluride has adopted street sanding controls that require the use of street sanding material containing less than “two percent fines” ( i.e., two percent of the material passing through a #200 sieve as determined by the American Society for Testing Materials “Standard Method for Sieve Analysis of Fine and Coarse Aggregates”, designation C136-84a (1988)). This control strategy was adopted in 1994 and approved by EPA in 1996. Colorado submitted revisions to their SIP Specific Regulation that change the recordkeeping and reporting requirements for street sanding in Telluride. These changes eliminate irrelevant recordkeeping requirements and require users to retain records for 2 years instead of annually submitting reports to the State. Since these changes in recordkeeping and reporting requirements do not change the enforceability of the street sanding control measures in Telluride, we are approving the changes into the SIP. In addition to these State and local control measures, the Federal Motor Vehicle Emission Control Program has reduced PM 10 emissions in Telluride as older, higher emitting diesel vehicles are replaced with newer vehicles that meet tighter emission standards. Overall, despite growth in the Telluride nonattainment area ( e.g., in population, employment and vehicle miles traveled) since 1990, attainment of the PM 10 NAAQS has been demonstrated. We have evaluated the various control measures, in addition to the 1996 attainment year emission inventory and the projected emissions described below, and have concluded that the continued attainment of the PM 10 NAAQS in the Telluride area has resulted from emission reductions that are permanent and enforceable.

The primary source of PM 10 emissions in the Pagosa Springs area is re-entrained road dust (from highways, paved roads, gravel roads, and dirt roads). The Town of Pagosa Springs paved 6.5 miles of unpaved roads in 1992, 1993 and 1994 in order to reduce PM 10 emissions. In addition, Pagosa Springs has adopted street sanding controls that require the use of street sanding material containing less than “one percent fines” ( i.e., one percent of the material passing through a #200 sieve as determined by the American Society for Testing Materials “Standard Method for Sieve Analysis of Fine and Coarse Aggregates”, designation C136-84a (1988)). Users of street sand on Highway 160 and Highway 84 must also use 15 percent less sand than an established base sanding amount. These sanding controls were adopted in 1992 and approved by EPA in 1994. Colorado submitted revisions to their SIP Specific Regulation that change the reporting requirements for street sanding in Pagosa Springs. These changes eliminate the road paving control measure that was completed in 1994 and require users to retain records for 2 years instead of annually submitting reports to the State. Since these changes in reporting requirements do not change the enforceability of the current street sanding control measures in Pagosa Springs, we are approving the changes into the SIP. In addition to these State and local control measures, the Federal Motor Vehicle Emission Control Program has reduced PM 10 emissions in Pagosa Springs as older, higher emitting diesel vehicles are replaced with newer vehicles that meet tighter emission standards. Overall, despite growth in the Pagosa Springs nonattainment area ( e.g., in population and sales tax revenue), attainment of the PM 10 NAAQS has been demonstrated. We have evaluated the various control measures, in addition to the 1997 attainment year emission inventory and the projected emissions described below, and have concluded the continued attainment of the PM 10 NAAQS in the Pagosa Springs area has resulted from emission reductions that are permanent and enforceable.

Section 107(d)(3)(E) of the CAA requires that, for a nonattainment area to be redesignated to attainment, we must fully approve a maintenance plan which meets the requirements of section 175A of the CAA. The plan must demonstrate continued attainment of the relevant NAAQS in the area for at least 10 years after our approval of the redesignation. Eight years after our approval of a redesignation, Colorado must submit a revised maintenance plan demonstrating attainment for the 10 years following the initial 10 year period. The maintenance plan must also contain a contingency plan to ensure prompt correction of any violation of the NAAQS. (See sections 175A(b) and (d).) Our September 4, 1992 guidance outlines 5 core elements that are necessary to ensure maintenance of the relevant NAAQS in an area seeking redesignation from nonattainment to attainment. Those elements, as well as guidelines for subsequent maintenance plan revisions, are as follows:

a. Attainment Inventory. The maintenance plan should include an attainment emission inventory to identify the level of emissions in the area which is sufficient to attain the NAAQS. An emission inventory for Telluride was developed for the attainment year (1996). The inventory was based on the 1991 base year inventory approved by us in 1996 and includes emissions from wood and coal burning, restaurants, aircraft, a stationary source, mobile exhaust and re-entrained dust from paved and unpaved roads. Emissions were updated to reflect the latest emission factors, device counts (for stoves/fireplaces), traffic estimates and also to reflect the road paving that has occurred in the area.

An emission inventory for Pagosa Springs was developed for the attainment year (1997). The inventory was based on the 1988 base year inventory approved by us in 1994 and includes emissions from wood and coal burning, mobile exhaust and re-entrained dust from paved and unpaved roads. Emissions were updated to reflect the latest emission factors and traffic estimates as well as the road paving and street sand controls that have occurred in the area.

Colorado conducted silt loading studies during the spring of 1997 in Telluride and Pagosa Springs to update the road dust emission factors used in the inventories. The revised emission factors for road dust used in the Telluride and Pagosa Springs inventories reflect the control measures that are in place in these areas and include the street sanding controls as well as voluntary street sweeping. Colorado adjusted the emission factors to account for a lack of sanding during the 1997 study period. However, no adjustment was made to account for the voluntary street sweeping that may have occurred. Since the voluntary street sweeping is not an enforceable control measure in the PM 10 SIPs for these areas, an additional adjustment to the road dust emission factors must be taken into consideration in our review. If the voluntary street sweeping had been suspended for the duration of the silt loading studies, PM 10 emission projections would likely increase no more than 2% in Telluride and 3% in Pagosa Springs. Based on these estimates, the areas would still be able to demonstrate maintenance of the 24-hour NAAQS. Thus, we believe Colorado has prepared adequate attainment inventories for the Telluride and Pagosa Springs areas.

b. Maintenance Demonstration. A state may generally demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. Colorado chose the modeling approach for both Telluride and Pagosa Springs.

The maintenance demonstration for both the Telluride and Pagosa Springs areas uses the chemical mass balance (CMB) roll-forward methodology, which is the same level of modeling used in the original attainment demonstrations for the moderate PM 10 SIPs for these areas. The CMB receptor model data are used to identify the sources of emissions that influence PM 10 concentrations in the area. Colorado used the attainment inventories to further refine the CMB source identification for each area and then apportion the design day concentration. The design day concentration was determined using EPA's “Table look-up” method. Based on the number of samples collected during a three year period from 1996—1998 (934 samples in Telluride and 1025 samples in Pagosa Springs), the third highest concentration measured during that period is used as the design value: 101 μg/m 3 for Telluride and 89 μg/m 3 for Pagosa Springs. Colorado prepared a maintenance inventory for the year 2012 for each area and rolled forward the design day concentration based on the changes that occurred in the emission inventory from the attainment year to the maintenance year. Based on this process, the Telluride 2012 maintenance concentration is 147 μg/m 3 and the Pagosa Springs 2012 maintenance concentration is 121 μg/m 3 . Since these 2012 projections for Telluride and Pagosa Springs are below the 24-hour PM 10 NAAQS, maintenance is demonstrated.

Although EPA would normally insist on some interim year projections between the attainment year and 2012, we have no reason to believe that total emissions will be greater than the 2012 projections in any of the interim years. Colorado applied simple, environmentally conservative, growth rates to all source categories other than stationary sources. The stationary source in the Telluride inventory was projected at maximum allowable emissions. Thus, total emissions in all years before 2012 should be less than 2012 total emissions and no interim year projections are required.

Since no violations of the annual PM 10 NAAQS have ever occurred in Telluride or Pagosa Springs and since the maintenance demonstration clearly shows maintenance of the 24-hour PM 10 NAAQS in these areas through the year 2012, it is reasonable and adequate to assume that protection of the 24-hour standard will be sufficient to protect the annual standard as well. Thus, EPA believes Colorado has adequately demonstrated that the Telluride and Pagosa Springs areas will maintain the PM 10 NAAQS for at least the next ten years.

c. Monitoring Network. Once a nonattainment area has been redesignated to attainment, the State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The maintenance plan should contain provisions for continued operation of air quality monitors that will provide such verification. Colorado operates one PM 10 monitoring site in the Telluride area and one in the Pagosa Springs area. We approve these sites annually, and any future change would require discussion with, and approval from, us. In their May 10, 2000 submittal, Colorado committed to continue to operate these PM 10 monitoring stations in Telluride and Pagosa Springs, in accordance with 40 CFR part 58.

d. Verification of Continued Attainment. A state's maintenance plan submittal should indicate how it will track the progress of the maintenance plan. This is necessary due to the fact that the emission projections made for the maintenance demonstration depend on assumptions of point and area source growth. Colorado commits to analyze the monitoring data in Telluride and Pagosa Springs to verify continued attainment of the PM 10 NAAQS. Additionally, in a letter dated January 24, 2001, from Margie Perkins, Director, Colorado Air Pollution Control Division, to Richard Long, Director, EPA Region VIII Air and Radiation Program, Colorado commits to reviewing inventory assumptions ( i.e., emission factors, actual or projected population growth and growth in vehicle miles traveled, etc.) on a 3-year basis. EPA relies on this commitment in approving the Telluride and Pagosa Springs maintenance plans and the above-referenced letter is archived as Additional Materials in 40 CFR 52.320(c)(90)(ii).

e. Contingency Plan. Section 175A(d) of the CAA requires that a maintenance plan also include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. For the purposes of section 175A, a state is not required to have fully adopted contingency measures that will take effect without further action by the State in order for the maintenance plan to be approved. However, the contingency plan is an enforceable part of the SIP and should ensure that contingency measures are adopted expeditiously once they are triggered. The plan should discuss the measures to be adopted and a schedule and procedure for adoption and implementation. The State should also identify the specific indicators, or triggers, which will be used to determine when the contingency plan will be implemented.

The Telluride and Pagosa Springs contingency plans will be triggered upon our determination that a PM 10 NAAQS violation has occurred in Telluride or Pagosa Springs. The Telluride and Pagosa Springs contingency plans provide that, within six months of our determination that a violation has occurred, Colorado and the local government staff in the area will develop appropriate contingency measure(s) intended to prevent or correct a violation of the PM 10 standard. If a violation of the PM 10 NAAQS has occurred, a public hearing process at the State and local level will begin. If the Colorado Air Quality Control Commission (AQCC) agrees that the implementation of local measures will prevent further exceedances or violations, the AQCC may approve of the local measures without adopting State requirements. If, however, the AQCC finds locally adopted contingency measures to be inadequate, the AQCC will adopt State enforceable measures as deemed necessary to prevent additional exceedances or violations. Any State-enforceable measures will become part of the next revised maintenance plan, submitted to us for approval.

Potential contingency measures for the Telluride and Pagosa Springs areas include: transportation control measures designed to reduce vehicle miles traveled, increased street sweeping, additional road paving, more stringent street sand specifications, voluntary or mandatory woodburning bans, expanded use of alternative de-icers, re-establishing nonattainment new source review permitting requirements for stationary sources, or other measures as deemed appropriate.

The Telluride and Pagosa Springs contingency plans provide that the contingency measures will be adopted and fully implemented within one year of a PM 10 NAAQS violation.

f. Subsequent Maintenance Plan Revisions. In accordance with section 175A(b) of the CAA, the State of Colorado is required to submit a revision to the maintenance plan eight years after the redesignation of the Telluride and Pagosa Springs areas to attainment for PM 10 . This revision is to provide for maintenance of the NAAQS for an additional ten years following the first ten year period. Colorado committed, in the Telluride and Pagosa Springs redesignation requests, to submit a revised maintenance plan, for each area, to EPA no later than December 31, 2008.

In order for an area to be redesignated to attainment, section 107(d)(3)(E) requires that it must have met all applicable requirements of section 110 and part D of the CAA. We interpret this to mean that, for a redesignation request to be approved, the State must have met all requirements that applied to the subject area prior to, or at the time of, submitting a complete redesignation request. In our evaluation of a redesignation request, we don't need to consider other requirements of the CAA that became due after the date of the submission of a complete redesignation request.

a. Section 110 Requirements. Section 110(a)(2) contains general requirements for nonattainment plans. For purposes of redesignation, the Colorado SIP was reviewed to ensure that all applicable requirements under the amended CAA were satisfied. These requirements were met for Telluride with Colorado's March 17, 1993 and April 22, 1996 submittals for the Telluride PM 10 nonattainment area. We provided full approval of the Telluride SIP Element on October 4, 1996 (61 FR 51784). The section 110(a)(2) requirements were met for Pagosa Springs with Colorado's February 24, 1993 and December 9, 1993 submittals for the Pagosa Springs PM 10 nonattainment area. We approved these submittals on May 19, 1994 (59 FR 26126).

b. Part D Requirements. Before a PM 10 nonattainment area may be redesignated to attainment, the State must have fulfilled the applicable requirements of part D. Subpart 1 of part D establishes the general requirements applicable to all nonattainment areas, subpart 4 of part D establishes specific requirements applicable to PM 10 nonattainment areas.

The requirements of sections 172(c) and 189(a) regarding attainment of the PM 10 NAAQS, and the requirements of section 172(c) regarding reasonable further progress, imposition of Reasonably Available Control Measures (RACM), the adoption of contingency measures, and the submission of an emission inventory, have been satisfied through our September 19, 1994 partial/conditional approval of the Telluride PM 10 SIP (59 FR 47807), our October 4, 1996 full approval of the Telluride PM 10 SIP (61 FR 51784) with the adoption of new street sanding requirements, our May 19, 1994 approval of the Pagosa Springs PM 10 SIP (59 FR 26126), and the demonstration that the Telluride and Pagosa Springs areas are now attaining the NAAQS.

Although EPA's regulations (see 40 CFR 51.396) require that states adopt transportation conformity provisions in their SIPs for areas designated nonattainment or subject to an EPA-approved maintenance plan, we have decided that a transportation conformity SIP is not an applicable requirement for purposes of evaluating a redesignation request under section 107(d) of the CAA. This decision is reflected in EPA's 1996 approval of the Boston carbon monoxide redesignation. (See 61 FR 2918, January 30, 1996.)

We approved the requirements of the part D new source review (NSR) permit program for the Pagosa Springs moderate PM 10 nonattainment area on August 18, 1994 (59 FR 42506). In that same Federal Register action, we only partially approved Colorado's nonattainment NSR permitting regulations for the Telluride moderate PM 10 nonattainment area because Colorado did not submit NSR permitting regulations for sources of PM 10 precursors in Telluride and because EPA had not yet found that such sources did not contribute significantly in Telluride. Colorado's nonattainment area NSR permitting regulations were fully approved on September 19, 1994 when we partially/conditionally approved the PM 10 SIP element for Telluride (59 FR 47807). Once the Telluride and Pagosa Springs areas are redesignated to attainment, the prevention of significant deterioration (PSD) requirements of part C of the CAA will apply. We must ensure that Colorado has made any needed modifications to its PSD regulations so that its PSD regulations will apply in the Telluride and Pagosa Springs areas after redesignation. Colorado's PSD regulations, which we approved as meeting all applicable Federal requirements, apply to any area designated as unclassifiable or attainment and, thus, will become fully effective in the Telluride and Pagosa Springs area upon redesignation of the area to attainment.

Under our transportation conformity regulations, States are to define the mobile vehicle emissions budget to which Federal transportation plans must demonstrate conformity. The emissions budget is defined as the level of mobile source emissions relied upon in the attainment or maintenance demonstration to maintain compliance with the NAAQS.

Colorado had previously adopted mobile source emissions budgets for Telluride for the years 1994 and 1997 of 16,901 lb/day and 14,687 lb/day, respectively. In the Telluride maintenance plan, Colorado established a new mobile source emissions budget of 10,001 lb/day for the year 2012 and beyond. This budget is the total of the 2012 mobile source PM 10 emissions and includes vehicle exhaust, highways, paved collector roads, paved local roads and dirt roads. EPA's approval of 10,001 lb/day as the budget means that this value must be used for conformity determinations for all years after 2012. This budget was adopted in Colorado's Ambient Air Standards Regulation and submitted to us for approval. We are approving the emission budget for Telluride into the SIP.

Colorado has also previously adopted mobile source emissions budgets for Pagosa Springs for the years 1994 and 1997 of 6,204 lb/day and 6,281 lb/day, respectively. In the Pagosa Springs maintenance plan, Colorado established a new mobile source emissions budget of 7,486 lb/day for the year 2012 and beyond. This budget is the total of the 2012 mobile source PM 10 emissions and includes vehicle exhaust, highways, paved roads, gravel roads and dirt roads. EPA's approval of 7,486 lb/day as the budget means that this value must be used for conformity determinations for all years after 2012. This budget was adopted in Colorado's Ambient Air Standards Regulation and submitted to us for approval. We are approving the emission budget for Pagosa Springs into the SIP.

On March 2, 1999, the United States Court of Appeals for the District of Columbia Circuit issued a decision in Environmental Defense Fund vs. the Environmental Protection Agency, No. 97-1637, that we must make an affirmative determination that the submitted motor vehicle emission budgets contained in State Implementation Plans (SIPs) are adequate before they are used to determine the conformity of Transportation Plans or Transportation Improvement Programs. In response to the court decision, we make any submitted SIP revision containing an emission budget available for public comment and respond to these comments before announcing our adequacy determination. EPA's transportation conformity rule (40 CFR part 93) spells out criteria that EPA must use in its adequacy review.

EPA sent a letter to the Colorado Air Pollution Control Division on July 12, 2000 stating that the motor vehicle emissions budgets in the submitted Telluride and Pagosa Springs PM 10 maintenance plans are adequate. This finding has also been announced on EPA's conformity website: http://www.epa.gov/otaq/transp/conform/adequacy.htm. We documented our adequacy determination for Telluride and Pagosa Springs in the Federal Register on August 3, 2000 (65 FR 47726). The budgets took effect on August 18, 2000 (15 days after our announcement in the Federal Register ), superseding the prior PM 10 emissions budgets for Telluride and Pagosa Springs.

The CAA requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission. Section 110(a)(2) of the CAA provides that each implementation plan submitted by a State must be adopted after reasonable notice and public hearing. Section 110(l) of the CAA similarly provides that each revision to an implementation plan submitted by a State under the CAA must be adopted by such State after reasonable notice and public hearing.

Colorado held a public hearing for the proposed rule changes on March 16, 2000. The rulemaking was adopted by the Air Quality Control Commission (AQCC) directly after the March 16, 2000 hearing and was formally submitted to EPA by the Governor on May 10, 2000. We reviewed the submission against our completeness criteria in 40 CFR part 51, appendix V. We determined the submission was complete and notified Colorado in a letter dated August 7, 2000. We have evaluated the Governor's submittal and have determined that Colorado met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

To implement our 1987 revisions to the particulate matter NAAQS, on August 7, 1987 (52 FR 29383), we categorized areas of the nation into three groups based on the likelihood that protection of the PM 10 NAAQS would require revisions of the existing SIP. We identified both Telluride and Pagosa Springs as PM 10 “Group I” areas of concern, i.e., areas with a strong likelihood of violating the PM 10 NAAQS and requiring a substantial SIP revision. The Telluride and Pagosa Springs areas were among several Group I PM 10 areas, all of which were designated and classified as moderate PM 10 nonattainment areas by operation of law upon enactment of the Clean Air Act Amendments of 1990 (November 15, 1990). See 56 FR 56694 at 56705-706 (November 6, 1991).

By November 15, 1991, States containing initial moderate PM 10 nonattainment areas were required to submit most elements of their PM 10 SIPs. (See sections 172(c), 188, and 189 of the CAA.) Some provisions, such as PM 10 contingency measures required by section 172(c)(9) of the CAA and nonattainment new source review (NSR) provisions, were due at later dates. In order for a nonattainment area to be redesignated to attainment, the above mentioned conditions in section 107(d)(3)(E) of the CAA must be met. We partially/conditionally approved the PM 10 SIP for Telluride on September 19, 1994 (59 FR 47807) and fully approved it, with the adoption of new street sanding requirements, on October 4, 1996 (61 FR 51784). We approved the PM 10 SIP for Pagosa Springs on May 19, 1994 (59 FR 26126).

EPA promulgated new standards for PM 10 on September 18, 1997. Areas were to be designated under the new PM 10 standard by July 2000. On May 14, 1999, the United States Court of Appeals for the D.C. Circuit in American Trucking Associations, Inc. et al., v. United States Environmental Protection Agency vacated the 1997 PM 10 standard. Because of the Court ruling, we are continuing to implement the pre-existing PM 10 standard, and are therefore approving redesignations to qualified PM 10 nonattainment areas. On May 10, 2000, the Governor of Colorado submitted a request to redesignate the Telluride and Pagosa Springs moderate PM 10 nonattainment areas to attainment (for the 1987 PM 10 NAAQS) and submitted maintenance plans for the areas.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective August 14, 2001 unless EPA receives adverse written comments by July 16, 2001.

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 August 14, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Section 9004 of the Resource Conservation and Recovery Act (RCRA) authorizes the Environmental Protection Agency (EPA) to approve state underground storage tank programs to operate in the state in lieu of the Federal underground storage tank (UST) program. To qualify for final authorization, a state's program must: (1) Be “no less stringent” than the Federal program for the seven elements set forth at RCRA Section 9004(a)(1) through (7); and (2) provide for adequate enforcement of compliance with UST standards of RCRA Section 9004(a). Note that RCRA sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in states with programs approved by EPA under RCRA section 9004. Thus, the Agency retains its authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the state authorized analogues to these provisions.

On January 16, 1998, the State of North Carolina submitted an official application to obtain final program approval to administer the underground storage tank program for petroleum and hazardous substances. On August 10, 1999, EPA published a tentative decision announcing its intent to grant North Carolina final approval. Further background on the tentative decision to grant approval appears at 64 FR 43336, August 10, 1999.

Along with the tentative determination, EPA announced the availability of the application for public comment and the date of a public hearing on the application. EPA requested advance notice for testimony and reserved the right to cancel the public hearing for lack of public interest. Since there was no public request, the public hearing was cancelled. No public comments were received regarding EPA's approval of North Carolina's underground storage tank program.

The State of North Carolina is not approved to operate the underground storage tank program on Indian lands within the State's borders.

I conclude that the State of North Carolina's application for final program approval meets all of the statutory and regulatory requirements established by Subtitle I of RCRA. Accordingly, North Carolina is granted final approval to operate its underground storage tank program for petroleum and hazardous substances. The State of North Carolina now has the responsibility for managing all regulated underground storage tank facilities within its border and carrying out all aspects of the underground storage tank program except with regard to Indian lands where EPA will have regulatory authority. North Carolina also has primary enforcement responsibility, although EPA retains the right to conduct enforcement actions under section 9006 of RCRA.

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

Today's rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local or tribal governments or the private sector. The UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary Federal program. North Carolina's participation in EPA's state program approval process under RCRA Subtitle I is voluntary. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may own and/or operate underground storage tanks, they are already subject to the regulatory requirements under the existing State requirements that EPA is now approving and, thus, are not subject to any additional significant or unique requirements by virtue of this action. Thus, the requirements of section 203 of the UMRA also do not apply to today's rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that own and/or operate underground storage tanks are already subject to the State underground storage tank requirements which EPA is now approving. This action merely approves for the purpose of RCRA section 9004 those existing State requirements.

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. The 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a state program.

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

This final rule does not have tribal implications. It 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. This rule is not subject to Executive Order 13175 because it does not significantly or uniquely affect the communities of Indian tribal governments. This rule merely incorporates by reference the North Carolina underground storage tank program requirements that EPA has already approved. North Carolina is not approved to implement the RCRA underground storage tank program in Indian country. This action has no effect on the underground storage tank program that EPA implements in the Indian country within the State. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This action does not have federalism implications. It 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, because it affects only one state. This action simply provides EPA approval of North Carolina's voluntary proposal for its State underground storage tank program to operate in lieu of the Federal underground storage tank program in that State. Thus, the requirements of section 6 of the Executive Order do not apply.

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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

Section 9004 of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended, 42 U.S.C. 6991c, allows the Environmental Protection Agency (EPA) to approve state underground storage tank programs to operate in the state in lieu of the Federal underground storage tank program. EPA is publishing elsewhere in this issue a Federal Register document announcing its decision to grant approval to North Carolina. Approval is effective on August 14, 2001.

EPA codifies its approval of state programs in 40 CFR part 282 and incorporates by reference therein the state statutes and regulations that will be subject to EPA's inspection and enforcement authorities under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions. Today's rulemaking codifies EPA's approval of North Carolina's underground storage tank program. This codification reflects the state program in effect at the time EPA granted North Carolina approval under section 9004(a), 42 U.S.C. 6991c(a) for its underground storage tank program. Notice and opportunity for comment were provided earlier on the Agency's decision to approve the North Carolina program, and EPA is not now reopening that decision nor requesting comment on it.

This effort provides clear notice to the public of the scope of the approved program in each state. By codifying the approved North Carolina program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in North Carolina, the status of Federally approved requirements of the North Carolina program will be readily discernible.

To codify EPA's approval of North Carolina's underground storage tank program, EPA has added section 282.83 to title 40 of the CFR. Section 282.83 incorporates by reference for enforcement purposes the State's statutes and regulations. Section 282.83 also references the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are approved as part of the underground storage tank program under subtitle I of RCRA.

The Agency retains the authority under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the state authorized analogues to these provisions. Therefore, the approved North Carolina enforcement authorities will not be incorporated by reference. Section 282.83 lists those approved North Carolina authorities that would fall into this category.

The public also needs to be aware that some provisions of the State's underground storage tank program are not part of the Federally approved state program. These non-approved provisions are not part of the RCRA subtitle I program because they are “broader in scope” than subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state provisions which are “broader in scope” than the Federal program are not incorporated by reference for purposes of enforcement in part 282. Section 282.83 of the codification simply lists for reference and clarity the North Carolina statutory and regulatory provisions which are “broader in scope” than the Federal program and which are not, therefore, part of the approved program being codified today. “Broader in scope” provisions cannot be enforced by EPA; the State, however, will continue to enforce such provisions.

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

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It does not impose new or additional enforceable duties on any State, local or tribal governments or the private sector. This rule merely incorporates by reference certain existing State underground storage tank program requirements which EPA previously approved and with which regulated entities must already comply. Further, the UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary Federal program. The requirements being codified today are the result of North Carolina's voluntary participation in EPA's state program approval process under RCRA Subtitle I. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may own and/or operate underground storage tanks, this codification incorporates into the CFR North Carolina's underground storage tank program requirements which EPA already approved under 40 CFR Part 281. Small governments are not subject to any additional significant or unique requirements by virtue of this action. Thus, the requirements of section 203 of the UMRA also do not apply to today's rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that own and/or operate underground storage tanks are already subject to the State underground storage tank program requirements which EPA is now incorporating by reference.

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. The 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions based on environmental health or safety risks.

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

This final rule does not have tribal implications. It 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. This rule is not subject to Executive Order 13175 because it does not significantly or uniquely affect the communities of Indian tribal governments. This rule merely incorporates by reference the North Carolina underground storage tank program requirements that EPA has already approved. North Carolina is not approved to implement the RCRA underground storage tank program in Indian country. This action has no effect on the underground storage tank program that EPA implements in the Indian country within the State. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This action does not have Federalism implications. It 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, because it affects only one State. Further, this action simply incorporates by reference the State's already approved underground storage tank program requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed or final rule. This rule will not impose any information requirements upon the regulated community.

On November 21, 2000 (65 FR 69998), BLM published a final rule completely revising 43 CFR subpart 3809 (the 2000 regulations). Among its features, that final rule contained financial guarantee requirements for operators whose plans of operations BLM approved before the effective date of the rule, January 20, 2001. The rule contained regulations requiring such operators to provide financial guarantees that comply with the new regulations by July 19, 2001.

The 2000 regulations were issued following a complex procedural history. In the 1998 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed the National Academy of Sciences (“NAS”) to review the adequacy of existing regulations of hardrock mining on Federal lands in each State in which it occurs, without regard to BLM's proposed regulations. The law directed the National Research Council (“NRC”), within the NAS, to complete the study by July 31, 1999. In the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-31, § 3002, 113 Stat. 57, 89-90), Congress prohibited Interior from both completing its work on the February 9, 1999, proposed rule and issuing a final rule until Interior provided at least 120 days for public comment on the proposed rule, subsequent to the publication of the NRC study. The NRC completed and published its report, entitled Hardrock Mining on Federal Lands (“NRC study”), in late September 1999.

In addition, Congress enacted a series of provisions in Interior appropriations acts beginning in 1997 that pertain to the 3809 rules. The last one, in the FY 2001 Interior Appropriations bill, provides as follows:

After the 2000 rules were issued, four lawsuits were filed challenging those rules; three in the U.S. District Court for the District of Columbia, and one in the U.S. District Court for the District of Nevada. In one of those lawsuits, National Mining Association v. Department of the Interior, No. 1:00CV02998 (D.D.C., filed December 15, 2000), the plaintiffs sought to enjoin the effectiveness of all of the 2000 rules, except for the bonding provisions. On January 19, 2001, the judge denied the plaintiff's motion for a preliminary injunction. The litigation has been stayed until September 4, 2001, pending a decision on the proposal described in the next paragraph.

On March 23, 2001, BLM published a proposed rule, 66 FR 16162, to suspend, in whole or in part, the 2000 regulations. As stated in the proposal, the suspension would provide BLM the opportunity to review some of the requirements of the new rule in light of issues the plaintiffs raised in the legal challenges to the rules and concerns expressed by others, including the Governor of Nevada. BLM proposed to reinstate the previous rules (commonly referred to as the “1980 regulations”). We also requested comment on whether we should retain some combination of the 2000 regulations and the 1980 regulations. The 45-day comment period on the proposal closed on May 7, 2001. BLM has received more than 25,000 comments. BLM is currently considering what action to take next on the proposal, and intends to issue a final rule in the next few months.

In advance of decisions involving the rest of the rulemaking, and for the reasons explained below, BLM is issuing this final rule now to address one issue—the timing of the financial guarantee requirements for operations for which BLM approved a plan of operations before January 20, 2001.

The overwhelming majority of comments expressed support for the financial guarantee provisions in the 2000 rules. Many comments filed by individuals and environmental groups urged the retention of the 2000 regulations, including the financial guarantee provisions. There were, however, some dissenting views. A number of comments, some of which were filed by representatives of the mining industry and by states which contain hardrock mining operations covered by 43 CFR subpart 3809, urged reinstatement of the 1980 regulations. Many of these latter respondents recognized, however, that the BLM rules must comply with recent congressional enactments and not be inconsistent with the recommendations of the NRC study. Accordingly, most agreed that the final rule could reflect the so-called “NRC Alternative,” which was Alternative 5 in BLM's final environmental impact statement for the 2000 regulations. This alternative included provisions reflecting only the NRC study's recommended regulatory changes.

A number of small miners expressed concern over their financial ability to meet the requirements of the rule if they have to post a financial guarantee for notice level activities. Comments also suggested that, at least for notice level activities, BLM should establish a standard bond amount as suggested by the NRC study. In addition, the State of Alaska (see below) expressed concern about effect of the rules on its bond pool. We received one industry comment suggesting that BLM phase out existing corporate guarantees.

Addressing a regulatory gap, the NRC Study recommended that “Financial assurance should be required for reclamation of disturbances to the environment caused by all mining activities beyond those classified as casual use, even if the area disturbed is less than 5 acres.” (NRC Study, Recommendation 1, pp. 8, 93.) The principal import of this recommendation was to require financial assurances for “notice-level” activities, that is, those operations disturbing less than 5 acres of public lands on which reclamation has not been completed, for which the previous rules did not authorize the posting of financial assurances. The NRC study also included other discussions to achieve its stated objective of guaranteeing financial assurance, such as the establishment of standard bond amounts for certain types of activities on specific kinds of terrain. (NRC study, pp. 94-95.)

As a general matter, BLM intends to follow the NRC study recommendation, and has concluded that we should retain the financial guarantee provisions of the 2000 regulations to ensure that sound financial guarantees will exist. With respect to the comments advocating that BLM eliminate the financial guarantee requirement for notice level activities, we cannot do so. This would be inconsistent with the NRC Study recommendation and therefore prohibited by the FY 2001 Interior and Related Agencies Appropriations Act.

BLM also continues to believe that the rules provide sufficient flexibility to establish standard bond amounts for particular activities on specific kinds of terrain. The preamble of the 2000 rule (See 65 FR 70066, column 2) explains that the “final rule is broad enough to allow BLM field managers to establish and accept standard financial guarantee amounts.” However, even if BLM field managers do this, financial guarantees must meet the likely cost of reclamation for the specific activity. As to the use of bond pools, the preamble to the 2000 rule (See 65 FR 70073) clearly supports the use of State bond pools if the BLM State Director determines the pool is sound. We continue to adhere to this position.

Although under the 1980 regulations, the bonding provision for plans of operations was discretionary with BLM, most operators having plans of operation that were approved under the previous rules did post financial guarantees with BLM or the state. Thus the 2000 regulations codified an existing practice for most plan-level operations, and, consistent with the NRC study, made the posting of a sufficient financial guarantee compulsory for disturbances caused by all mining activities beyond casual use.

The problem BLM currently faces is how to complete the transition from the previous financial guarantee requirements to the ones in the 2000 regulations for operations under plans that BLM approved before January 20, 2001. The 2000 rule at section 3809.505 establishes July 19, 2001, as the date by which mining operations with plans of operations approved before January 20, 2001, must come into compliance with the new financial assurance provisions of the 2000 regulations. Implementation of the provision by that date has proven to be difficult.

The reasons for the problem vary. In many states, BLM implements bonding and financial guarantee requirements in cooperation with State agencies. In some States, BLM accepts State-approved bonds to satisfy these requirements. In at least 6 States, either BLM or the State or both will be unable to implement the financial guarantee requirement by the July 19, 2001, deadline. Reasons for this inability include an unrealistic deadline to start with, uncertainty over the fate of the 2000 rules caused by the pending lawsuits, and a multiplicity of State agencies with which BLM must coordinate. BLM cooperates with State governments through memoranda of understanding (MOUs). Many of these MOUs need updating to meet the requirements of the new regulations and, in some cases, States will need to revise their laws. Thus, on July 19, 2001, for reasons beyond their control, a number of operators would not be in compliance with the 2000 regulations unless BLM changes that date.

For example, in Alaska, the State legislature authorized a State bond pool covering bonds under the 1980 regulations. Most small scale operators in Alaska are unable to get bonds from any source other than the State bond pool. The MOU under which BLM accepts these State bond pool bonds expires July 17, 2001. Although the MOU could be renewed in its present form, it would not be in compliance with the 2000 regulations. The BLM Alaska State Office is not able to modify the MOU to make it consistent with the 2000 regulations by July 17 or July 19, 2001. The consequences of failing to make this deadline would be that miners in Alaska would be left without a source of bonds, potentially resulting in a general shutdown in the middle of the placer mining season.

In Arizona, there is no single State program with which BLM coordinates. Rather, many agencies exist with different standards and requirements. Further, no single acceptable State financial guarantee exists that is intended to cover entire mining operations from exploration to reclamation and termination. We need to review all mining financial guarantees in the State for compliance with the 2000 regulations, and notify operators of deficiencies. BLM does not expect to complete this review by July 19, 2001, despite its best efforts to do so.

To remedy this implementation problem, this final rule extends the effective date of the financial guarantee requirements in section 3809.505 of the 2000 regulations from July 19, 2001, to November 20, 2001, for operations with plans of operations that BLM approved before January 20, 2001, that have a financial guarantee in place. BLM is also extending the deadline for acquiring an initial financial guarantee. Those operators with ongoing activities who had plans of operations approved before January 20, 2001, but who did not have a financial guarantee, must provide a financial guarantee by September 13, 2001. This latter date establishes a shorter time period to comply with the financial guarantee requirements in the 2000 rule than BLM is giving those operators who already have an approved financial guarantee.

We are taking today's action separate and apart from the rest of the rulemaking because we want to ensure that BLM properly implements the transfer to the financial guarantee system contained in the 2000 rule. As stated above, unless further analysis of comments on our March 23, 2001, proposed rule discloses significant new information strongly supporting a change in the approach to financial guarantees, it is our intention to continue with the current framework for financial guarantees. Once we complete review and analysis of the many comments received in response to the March 23, 2001, proposal (66 FR 16162), we expect to issue a final rule addressing other matters related to the 2000 regulations.

In its March 23, 2001, proposal, BLM stated that it intends to rely on the support documents prepared for the 2000 regulations for its final actions. We explain below how we have met the procedural requirements related to this final rule, and the extent to which those earlier documents support this final rule.

The Office of Management and Budget reviewed the 2000 regulations under Executive Order 12866. The Federal Register preamble to the final 2000 regulations discussed the impacts of those regulations. The incremental impact of today's action is minimal. Extending the deadline for implementing the financial assurance requirements for existing operations with plans approved before January 20, 2001, will not have an effect on the economy in excess of $100 million. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. It does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following: (1) Are the requirements in the regulations clearly stated? (2) Do the regulations contain technical language or jargon that interferes with their clarity? (3) Is the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the regulations? How could this description be more helpful in making the regulations easier to understand?

Please send any comments you have on the clarity of the regulations to the address specified in the ADDRESSES section.

This final rule amends regulations that constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). BLM has prepared a final environmental impact statement (EIS) for the 2000 regulations, which is on file and available to the public in the BLM Administrative Record at the Nevada State Office, P.O. Box 12000, Reno, Nevada 89520, and on BLM's home page at www.blm.gov. The effect of this final rule is to postpone a deadline in the regulations that cannot be met. The impacts of this change are minimal and are covered by the final EIS for the 2000 regulations. Thus this final rule does not constitute a major Federal action that would have a significant effect upon the quality of the human environment.

Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This final rule is covered by the regulatory flexibility analysis of the 2000 regulations (see 65 FR 70103, and particularly the discussion of bonding beginning on page 70104). This rule merely extends the deadline for compliance, making compliance easier for small entities.

Therefore, BLM has determined under the RFA that the incremental effects of this final rule would not have a significant economic impact on a substantial number of small entities.

This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The rule merely extends a deadline on a regulatory requirement that was already established after completion of an analysis BLM did to comply with SBREFA.

This final rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor does it have a significant or unique effect on State, local, or tribal governments or the private sector. The rule merely extends a deadline for operators with approved plans of operations predating January 20, 2001. It imposes no requirements on State, local, or tribal entities. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ).

The final rule does not represent a government action capable of interfering with constitutionally protected property rights. The rule merely extends a deadline on a regulatory requirement that is already established. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

As part of the process establishing the 2000 regulations, which this final rule amends, BLM prepared a Federalism Assessment (see 65 FR 70109). The final rule 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. It continues in effect the present procedural arrangements between BLM and the various western States in providing for financial guarantees for mining operations—the memorandum of understanding process. It merely provides additional time for both BLM and the States to prepare for implementation of new regulatory requirements for financial guarantees for mining operations. Therefore, in accordance with Executive Order 13132, BLM has determined that this final rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Under Executive Order 12988, the Office of the Solicitor has determined that this final rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

In accordance with Executive Order 13175, we have found that this final rule does not include policies that have tribal implications. Providing additional time for both BLM and the States to prepare for implementation of new regulatory requirements for financial guarantees for mining operations will not have an impact on Tribes.

This rule is not a significant energy action. It will not have an adverse effect on energy supplies. The rule applies only to the date by which operators must comply with financial guarantee provisions of these regulations.

These regulations do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

The principal author of this rule is Richard Deery, Solid Minerals Group, assisted by Ted Hudson of the Regulatory Affairs Group, Washington Office, Bureau of Land Management, and Joel Yudson, Office of the Solicitor, Department of the Interior.

Throughout the preamble and the rule, the terms “we”, “our” and “us” refer to FEMA.

• 1991. On March 6, 1991, we published in the Federal Register (56 FR 9452-9459) a final rule, 44 CFR part 353, that established a structure for assessing and collecting user fees from NRC licensees. Under 44 CFR part 353, Radiological Emergency Preparedness (REP) services provided by FEMA personnel and FEMA contractors were reimbursable only if these services were site-specific in nature and directly contributed to the fulfillment of emergency preparedness requirements needed for licensing by the NRC under the Atomic Energy Act of 1954, as amended. Although we published a new approach for the assessment and collection of fees from licensees for FY 1999 and beyond, part 353 remains in effect and will apply in any subsequent fiscal year for which the Congress does not authorize us to collect user fees for generic services.

• 1992. Public Law 102-389, October 6, 1992, 106 Stat. 1571-1606, expanded reimbursable REP Program activities by authorizing us to charge licensees of commercial nuclear power plants fees to recover the full amount of the funds anticipated to be obligated for our REP Program for FY 1993.

• 1993. On July 1, 1993, we published in the Federal Register (58 FR 35770-35775) an interim final rule, 44 CFR part 354, to establish and set forth the policies and administrative basis for assessing and collecting these fees. We reserved the option to reissue or amend part 354 for other fiscal years provided that the Congress enacted appropriate authority.

• Public Law 103-124, September 23, 1993, 107 Stat. 1297, directed us to continue assessing and collecting fees to recover the full amount of the funds anticipated to be obligated for our REP Program for FY 1994. In addition, the Administration proposed to assess such fees for subsequent fiscal years.

• Using the methodology established by the interim final rule, 44 CFR part 354, we calculated the final hourly user fee rate for FEMA personnel during FY 1993 at $122.88. On December 13, 1993, we published a notice to this effect in the Federal Register (58 FR 65274). The notice explained that we would not publish a final rule at that time, pending a reconsideration of the methodology used for FY 1993 and taking into consideration the comments received on interim final rule 44 CFR part 354.

• 1994. We continued the methodology established by the interim final rule 44 CFR part 354 in effect for FY 1994 by notice in the Federal Register (59 FR 26350, published May 19, 1994).

• Using the methodology established by the interim final rule, we calculated the final hourly user fee rate for FEMA personnel during FY 1994 at $120.79. On November 28, 1994, we published a notice to this effect in the Federal Register (59 FR 60792-60793).

• On July 27, 1994, we published a proposed rule in the Federal Register , 59 FR 38306-38309, 44 CFR part 354. Predicated on Congress passing authorizing legislation, this rule proposed to establish fees for FY 1995 assessed at a flat rate based on fiscal year budgeted funds for REP Program services performed by FEMA personnel and by FEMA contractors whether or not those services directly supported NRC licensing requirements.

• 1995. Under our appropriation for FY 1995, Public Law 103-327, September 28, 1994, 108 Stat. 2325, the Congress authorized us to assess and collect fees from Nuclear Regulatory Commission (NRC) licensees to recover approximately, but not less than, 100 percent of the amounts that we anticipated would be obligated for our Radiological Emergency Preparedness (REP) Program. This appropriations act further required us to publish through rulemaking a fair and equitable methodology for the assessment and collection of fees applicable to persons subject to FEMA's radiological emergency preparedness regulations. Public Law 103-327 granted authority for these user fees to be assessed and collected for fiscal year 1995 services only. Although the public law was limited to FY 1995, we reserved the option to reissue or amend part 354 for other fiscal years provided that the Congress enacted appropriate authority.

• Under final rule 44 CFR part 354, 60 FR 15628-15634, published on March 24, 1995, we acted to recover fiscal year budgeted funds for REP Program services performed by FEMA personnel and by FEMA contractors whether or not those services directly supported NRC licensing requirements. We assessed fees for FY 1995-FY 1998 using a historically-based methodology in which we calculated two components for each site: (1) A site-specific, biennial exercise-related component and (2) a flat fee component.

• Public Law 105-276, 112 Stat. 2502, established in the Treasury a Radiological Emergency Preparedness Fund, which will be available for offsite radiological emergency planning, preparedness, and response. This Act gives continuing authority to the Director of FEMA, beginning in fiscal year 1999 and thereafter, to publish fees to be assessed and collected, applicable to persons subject to our radiological emergency preparedness regulations. As in previous Acts, we must collect not less than 100 percent of the amounts needed for our radiological emergency preparedness program, and the methodology for assessment and collection of fees must be fair and equitable. We must deposit fees received in the Fund as offsetting collections, which became available on October 1, 1999, and remain available until expended.

• 1998. On December 15, 1998, we published the interim final rule with request for comments in the Federal Register , 63 FR 69001. The comment period was for 60 days following publication. We received no comments during the comment period. On the same day we published a notice that established the fiscal year 1999 hourly rate at $33.01 for assessing and collecting fees from NRC licensees.

• 1999. Our Appropriations Act for FY 2000, Public Law 106-74, 113 Stat. 1087, again required us to collect user fees of not less than 100 per cent to be assessed and collected for fiscal year 2000 services only. Fees collected become available for authorized purposes on October 1, 2000.

• 2000. This final rule contains one minor revision to the December 13, 1998 interim final rule. Under the description of flat fee services, we have added two more services. We will recover future costs that we incur relating to activities involving the REP Program Implementation Oversight Working Group and training and transitioning to any new REP Program technical support contractor(s) as part of our REP Program User Fee.

Historically-based methodology. 44 CFR part 354 adopted theis historically-based approach to the methodology in place of the flat fee approach described in the proposed rule. We adopted this approach based on the numerous public comments that we received on our proposed flat fee methodology and on the results of our comparison of different user fee methodologies, which used actual data from fiscal years 1993 and 1994.

The historically-based methodology contains elements of the flat fee methodology and of the Nuclear Energy Institute (NEI) methodology. The methodology responds to commenters who objected to the flat fee's lack of site-specific considerations and accountability by factoring in site-specific information relating to the majority of site-specific activities, i.e. , plume pathway emergency planning zone (EPZ) biennial REP exercises.

The historically-based methodology also preserves many of the benefits of a flat fee methodology, specifically:

(1) the ability to provide each licensee with a bill early in the fiscal year, thus facilitating the licensee's planning and budgeting process by greatly increasing the predictability of the licensee's bill;

(2) the ability of States and licensees to request needed technical assistance;

(3) the earlier deposit of funds in the U.S. Treasury, thus benefiting the U.S. taxpayer;

(4) a reduction of our resources needed to track administrative costs, thus making the accounting and billing process more efficient and cost-effective for the Government and freeing up our scarce resources for other REP Program activities; and

(5) the historically-based methodology ensures fairness and equity in billing licensees.

Agreements and criteria for services that we provide. We provide services primarily under a Memorandum of Understanding (MOU) between the NRC and FEMA, published on September 14, 1993 (58 FR 47996-48001) and under regulations issued by both FEMA (44 CFR parts 350, 351, and 352) and the NRC (10 CFR parts 50 and 52).

We evaluate radiological emergency response plans and exercises using joint FEMA-NRC criteria, NUREG-0654/FEMA-REP-1, Revision 1 and Supplement 1. When State and local governments do not participate in the development of an emergency plan, the licensee may submit a licensee offsite plan to the NRC. Under the MOU, the NRC can request that we review a licensee offsite plan and provide its assessments and findings on the adequacy of such plans and preparedness evaluated under Supplement 1.

This final rule makes one principal change to 44 CFR part 354. We add several items to the list of services for which fees can be collected as part of the flat fee component of the REP user fee billings. These added services include: training and transition costs that we incur as a result of awarding any new REP Program technical support contract; and any other costs that we incur resulting from our REP Program Strategic Review implementation and oversight working group activities. In other respects the rule remains as published as an interim final rule in 1998.

This rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion under 44 CFR 10.8(d)(2).

Under the Regulatory Flexibility Act agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When an agency is required by 5 U.S.C. 553 to publish a notice of proposed rulemaking, a regulatory flexibility analysis is required for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

For the reasons that follow I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This final rule makes minor and technical amendments that our appropriations acts mandate. This rule does not contain any significant substantive changes from our present radiological emergency preparedness regulations and does not substantially change how we collect fees that NRC licensees owe to the United States for services that we perform. While preparing the existing regulations we adjusted the rule to include: (1) A site-specific, biennial exercise-related component and (2) a flat fee component. We base the site-specific, exercise-related component on the average number of hours spent by our personnel in REP exercise-related activities since the beginning of our user fee program (1991) for each site, and multiply the average number of REP exercise-related hours for each site by the average hourly rate in effect for the fiscal year for a REP Program employee. That adjustment helps make the fees collected reflect more equitably the costs for our services than would a flat fee alone, which vary with each utility involved in the biennial exercises. The rule thus adjusts the economic impact of the fees to the relative capacities of the utilities to bear the direct and indirect costs of the regulation.

For the reasons stated I certify that the Regulatory Flexibility Act does not apply to this final rule. We have prepared no regulatory flexibility analysis under that Act.

The Office of Management & Budget (OMB) has approved the information collection requirements contained in this final rule under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ) and has assigned OMB control number 3067-0201. The information in this final rule does not change any of the information collection requirements currently approved by OMB.

We have prepared and reviewed this final rule under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rule addresses the statutorily required need to reimburse the United States for services that we provide to the nuclear power industry for offsite radiological emergency planning and preparedness in communities near nuclear power plants. Our annual appropriations acts require the rule. The rule relates to fees paid by 45 NRC licensees at 64 sites for the services provided by our Agency for emergency management planning and exercises. Collections under the program total less than $15,000,000 per year. In its final form the rule responds to comments received from businesses of differing sizes within the regulated industry and makes adjustments to the methods for determining the fees that ensure fairness and equity in billing licensees.

This rule will not adversely affect the availability of funding to small entities, it will not have significant secondary or incidental effects on a substantial number of small entities, and it will not create any additional burden on small entities, particularly State, local and tribal governments.

For the reasons stated I certify that this proposed rule is not a significant regulatory action within the meaning of § 2(f) of Executive Order 12866 of September 30, 1993, 58 FR 51735. The Office of Management and Budget has not reviewed this rule under Executive Order 12866.

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under the provisions of under Executive Order 13132, Federalism, dated August 4,1999. We find that the statutory imposition of fees and the regulatory implementation of the statutory requirements that the nuclear power industry reimburse FEMA for offsite radiological emergency planning and preparedness in communities near nuclear power plants involves no 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 various levels of government. Therefore, we have concluded that this rule involves no policies that have federalism implications under Executive Order 13132, and we have not prepared a federalism assessment. The Office of Management and Budget has reviewed this rule under the provisions of Executive Order 13132.

We have sent the final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Pub. L.104-121. This final rule is not a “major rule” within the meaning of that Act. It does not result in nor is it likely to result in an annual effect on the economy of $100,000,000 or more. It will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises.

This final rule is exempt from the requirements of the Regulatory Flexibility Act, as certified previously, and complies with the Paperwork Reduction Act.

On November 17, 2000, the Commission adopted the RF Procedures Order in 47 CFR Part 1, in WT Docket No. 97-192, FCC 00-408 (66 FR 3499) to address the issues raised in the Commission's Notice of Proposed Rulemaking (62 FR 48034) regarding the review of requests for relief from impermissible State and local regulation of personal wireless service facilities based on the environmental effects of radiofrequency (RF) emissions. In the RF Procedures Order, the Commission provided that such requests under section 332(c)(7)(B)(v) of the Communications Act of 1934, as amended, 1 shall be filed as petitions for declaratory ruling, and also established certain required and recommended procedures regarding the service of pleadings and comment periods in such proceedings.

2. The rule change to Note 1 to § 1.1206(a), which was published on January 16, 2001 (66 FR 3499), received OMB approval on June 1, 2001, pursuant to OMB Control No. 3060-0977. The RF Procedures Order amended Note 1 to § 1.1206(a) of the Commission's rules so that the expanded service requirements set forth in that note apply to petitions filed pursuant to section 332(c)(7)(B)(v) (i.e., petitions for relief from impermissible State and local regulation of personal wireless service facilities on the basis of RF emissions). Thus, petitioners seeking relief under Section 332(c)(7)(B)(v) must serve a copy of such petitions on those State and local governments that are the subject of the petitions, as well as on those State and local governments. Accordingly, this rule change will become effective June 15, 2001. This notice constitutes publication of the effective date of this rule change.

3. The Public Notice is available for inspection and copying during normal business hours in the FCC Reference Center, 445 Twelfth Street, SW., Washington, DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800. The Public Notice is also available via the internet at: http://www.fcc.gov/Bureaus/Wireless/News_Releases/2001/index.html in da01-1368.doc and da01-1368.txt formats.

This is a summary of the Commission's Memorandum Opinion and Order, ET Docket No. 98-76, FCC 01-160, adopted May 10, 2001, and released May 22, 2001. The full text of this Commission decision is available on the Commission's Internet site at http://www.fcc.gov. It is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW, Washington, D.C., and also may be purchased from the Commission's duplication contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036. Comments may be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html or by e-mail to ecfs@fcc.gov.

1. In the Report and Order, 64 FR 22559, April 27, 1999, in this proceeding, the Commission adopted rules that require scanning receivers to include adequate filtering so that they do not pick up cellular service transmissions. In addition, the amended rules require that scanning receivers be designed so that their tuning, control and filtering circuitry are not easily accessible and that any attempts to modify the scanning receiver to receive cellular service transmissions will likely render the scanning receiver inoperable. Further, the Commission modified the rules to require that a warning label be affixed to scanning receivers to indicate that modification of the receiver to receive cellular service transmissions is a violation of FCC rules and Federal law. To further ensure that parties do not circumvent these requirements by developing a scanning receiver that tunes the cellular frequencies but automatically switches among only two or three frequencies, the Commission modified the definition of a scanning receiver to include receivers that switch between “two or more” frequencies instead of “four or more” frequencies. The manufacture or importation of scanning receivers and frequency converters designed or marketed for use with scanning receivers that do not comply with these new provisions were required to cease on or before October 25, 1999.

2. In their petitions for reconsideration, Tandy and Uniden request that the Commission exempt scanning receivers that are built with the capability to receive only frequencies much lower than those capable of intercepting cellular signals from the circuitry inaccessibility requirement and the warning label requirement. Specifically, Tandy and Uniden state that scanners that only operate in the range of 30 MHz to 512 MHz should be exempted. The petitioners state that the inaccessibility requirement is over-burdensome to both manufacturers and consumers because it will likely increase the manufacturing cost and make it impossible to make future repairs for those scanning receivers that do not have a tuning range of concern for intercepting cellular service. Further, Tandy and Uniden request that scanning receivers that tune at or below 512 MHz be exempted from the warning label requirement because it will require additional steps in the manufacturing process or require changes to the tooling equipment, with either option likely to increase production costs.

3. We decline to adopt the requested exemptions of the circuitry inaccessibility requirement and the warning label requirement for scanning receivers that tune at or below 512 MHz. The fact that a scanner is intended to tune only below 512 MHz does not ensure that reception of cellular telephone frequencies will not occur. For example, a superheterodyne receiver is capable of receiving images at frequencies separated from the tuned frequency by twice the first intermediate frequency (“IF”) of the receiver. Within a scanner having a first IF frequency of 250 MHz, image reception of the 800 MHz cellular telephone bands could occur when the scanner is tuned in the 300 MHz range. For this reason, some scanners that tune only up to 512 MHz could potentially be modified to receive cellular telephone frequencies. Therefore, we will not exempt scanners from the circuitry inaccessibility and labeling requirements based on the 512 MHz frequency cutoff proposed by the petitioners. With regard to the petitioners' concerns about increased manufacturing costs and the inability to make future repairs, we find no other reasonable alternative to the inaccessibility requirement that will provide the same level of prevention of unlawful modifications. We find that these requirements are the best method available to continue to satisfy the requirement of the Telephone Disclosure and Dispute Resolution Act (“TDDRA”), Public Law 102-556, that scanning receivers not be capable of readily being altered by the user to receive cellular service transmissions. We also note that in the R&O , the Commission allowed flexibility in the ways that a manufacturer may make tuning and control circuitry inaccessible in order to minimize any burdens imposed by the new rules. We also find that the rules imposed for scanners that tune only below 512 MHz are no more burdensome than for other scanners. We therefore reaffirm our finding that the rules adopted in the R&O represent the most efficient and least restrictive method to accomplish the Commission's policies and objectives and the statutory mandate of Congress.

4. Tandy and Uniden request that the Commission reword the language contained in the labeling requirement to state that “intentional reception or disclosure of certain radio communications may violate Federal law.” Tandy and Uniden believe that this wording would more closely satisfy language contained in a bill that was pending in the House of Representatives at the time the petitions were filed. We note Congress did not pass H.R. 514 or any subsequent bill that would require a change in the warning label wording. Absent specific legislative action, we find that it would be overly burdensome to scanning receiver manufacturers to adopt any additional changes to the warning label at this time. In addition, we are concerned that the language proposed by Tandy and Uniden does not clearly state that modification of the device to receive cellular service transmissions is a violation of FCC rules and Federal law. We therefore decline to adopt the requested changes in the warning label wording.

5. The petitioners further request that the rules be modified to permit the warning label to be placed on the outside of the device packaging material and in the owners manual as is provided for in § 15.19(b)(3) of the Commission's rules for certain other devices. Tandy and Uniden state that some scanning receivers are so small or compact as to make the inclusion of the full label impossible without significant design modification. Uniden states that it would intentionally have to make the casing larger than is otherwise required for the enclosed device, resulting in considerable waste with regard to production materials, and inconvenience for the consumer who must handle and carry a unit larger than necessary. We believe that an exception of the labeling requirement can be made for small devices and are amending the rules accordingly. For devices that are so small that it is not practicable to place the warning label on the device, the warning label shall be placed in a prominent location in the instruction manual or pamphlet supplied to the user, and also on the container in which the device is marketed. The FCC identifier must be displayed on the device.

6. Uniden is concerned that the adoption of a new definition for scanning receivers will require the filing of new applications for equipment authorization for devices that were not previously considered scanning receivers such as a typical weather band scanner. The Commission's intention of enacting a new definition of a scanning receiver was to prevent individuals from manufacturing a scanning receiver that scans fewer than four frequencies to circumvent our scanning receiver rules. It was not the intention of the Commission to change the definition of a scanning receiver to encompass receivers that have not been considered scanning receivers in the past. We agree with Uniden that receivers designed solely for the reception of National Oceanic & Atmospheric Administration (“NOAA”) broadcast weather band signals should continue to be exempt from the scanning receiver definition. The scanning receiver definition will be modified to include the weather radio exemption. We also note that scanning receivers designed solely for the reception of broadcast signals under part 73 of our rules or used as part of a licensed service, continue to be exempt from the scanning receiver regulations. In order to further clarify this in the definition, we are replacing the words “licensed station” with “licensed service.”

7. We agree with Tandy and Uniden that the wording of the signal rejection ratio rule adopted in the R&O was not clear, § 15.121(b), states that only cellular service signals that are “38 dB or higher” than the receiver sensitivity should be rejected. This was not the Commission's intended meaning for § 15.121(b). As stated in the R&O, the Commission adopted the proposal from the Notice of Proposed Rule Making, 63 FR 31685, June 10, 1998, in this proceeding, which stated that scanning receivers must reject cellular service signals that are up to 38 dB higher than the minimum receiver sensitivity. Therefore, we will amend § 15.121(b) so that it is clearly understood that scanning receivers must reject cellular service signals that are 38 dB or lower based upon a 12 dB SINAD specification.

8. Pursuant to the authority contained in Sections 4(i), 302, 303(e), 303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as amended, it is ordered, that the Petitions for Reconsideration filed by Tandy Corporation and Uniden America Corporation, are Granted in part and Denied in all other respects.

9. Part 15 of the Commission's Rules and Regulations are amended, effective July 16, 2001. Authority for issuance of this Memorandum Opinion and Order is contained in Section 4(i), 301, 302, 303(e), 303(f), 303(g), 303(r), 304, and 307 of the Communications Act of 1934, as amended, 47 U.S.C. Section 154(i), 301, 302, 303(e), 303(f), 303(g), 303(r), 304 and 307.

Additional information is contained in the Board's decision. A printed copy of the Board's decision is available for a fee by contacting: Da -To-Da Office Solutions, Room 405, 1925 K Street, NW., Washington, DC 20006, telephone (202) 293-7776. The Board's decision is also available for viewing and downloading on the Board's website at “www.stb.dot.gov.”

Small entities. The Board certifies that the revisions to our regulations will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). These rules have created additional filing requirements only for Class I applicants, which are very large rail carriers. At the same time we have given increased weight to issues and concerns of smaller railroads and shippers, a change that should benefit these small entities.

Environment. This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

Board releases available via the Internet. Decisions and notices of the Board, including this decision, are available on the Board's website at “www.stb.dot.gov.”