Citrus canker is a plant disease that affects plants and plant parts, including fresh fruit, of citrus and citrus relatives (Family Rutaceae). Citrus canker can cause defoliation and other serious damage to the leaves and twigs of susceptible plants. It can also cause lesions on the fruit of infected plants that render the fruit unmarketable, and can cause infected fruit to drop from the trees before reaching maturity. The aggressive A (Asiatic) strain of citrus canker can infect susceptible plants rapidly and lead to extensive economic losses in commercial citrus-producing areas.

The regulations to prevent the interstate spread of citrus canker are contained in 7 CFR 301.75-1 through 301.75-15 (referred to below as the regulations). The regulations restrict the interstate movement of regulated articles from and through areas quarantined because of citrus canker and provide conditions under which regulated fruit may be moved into, through, and from quarantined areas for packing. The regulations currently list parts of Broward, Collier, Dade, Hendry, Hillsborough, and Manatee Counties, FL, as quarantined areas for citrus canker.

On December 7, 2000, we published in the Federal Register (65 FR 76582-76588, Docket No. 00-037-2) a proposed rule to amend the regulations to establish provisions under which eligible owners of commercial citrus groves could, subject to the availability of appropriated funds, receive payments to recover production income lost as a result of the removal of commercial citrus trees to control citrus canker.

We solicited comments concerning our proposal for 30 days ending on January 8, 2001. We received a total of 30 comments by that date. They were from citrus growers, packers, and shippers, farm credit lenders, a grove care company, a nursery, and growers associations and cooperatives.

Three commenters offered unqualified support for the proposed rule, while six others offered support but requested a specific change in the proposed rule's provisions. One commenter opposed the proposed rule based on the grounds that the proposed payments were calculated incorrectly. The remaining commenters suggested changes to the proposed rule or simply urged us to consider the most up-to-date information available to recalculate the payments presented in the proposed rule. The issues raised by those who opposed the rule or offered suggestions are discussed below, by topic.

Several commenters recommended that any payments be made jointly payable to both the grower and lender. Some of these commenters suggested that APHIS conduct a lien search and make any lost production payments jointly payable to the grove owner and any lienholders of record. One commenter added that “condemnation and insurance payments related to government takings or damage to improvements are routinely made payable jointly to the parties in interest.”

Another commenter reported that in July 2000, more than 4,000 containerized citrus trees had been seized from a Miami, FL, nursery by the State citrus canker eradication program. The commenter stated that as of January 2001, he had yet to receive any additional information from State or Federal authorities regarding the status of the seized trees or possibility of compensation being paid for the trees. The commenter urged APHIS to make compensation available to nursery owners who have suffered losses as a result of the State/Federal citrus canker eradication program.

Still another commenter stated that the proposed rule should have provided for additional payments to be made to commercial lime growers who packed their limes in their own packinghouses or in affiliated packinghouses ( i.e., “vertically integrated” growers/packers). This commenter stated that the removal of commercial lime trees has not only resulted in the production income losses addressed in the proposed rule, but has also destroyed the economic usefulness of these growers' packinghouse assets, which are specifically designed to handle limes. The commenter suggested, based on packinghouse cash data supplied with his comment, that additional payments of $6,054 per acre be made to commercial lime growers who own or are affiliated with a packinghouse.

The funds we will use to make payments for the recovery of lost production income were made available by Sec. 203(e) of the Agricultural Risk Protection Act of 2000 (Public Law 106-224) and Sec. 810 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (Public Law 106-387). Public Law 106-224 directs the Secretary of Agriculture to “compensate commercial growers for losses due to Pierce's disease, plum pox, and citrus canker,” and Public Law 106-387 states that “[t]he Secretary of Agriculture shall compensate Florida commercial citrus and lime growers for lost production, as determined by the Secretary of Agriculture, with respect to trees removed to control citrus canker.” As neither of those acts makes reference to including the growers' mortgage- or lienholders, nurseries, or packinghouses in those payments, we believe that we are limited to making payments under this final rule to commercial citrus and lime growers.

Several commenters opposed the use of a two-tier discount rate in calculating the per-acre payments presented in the proposed rule, arguing that there was insufficient information available to support a two-tier discount rate. These commenters suggested that a single, appropriate discount rate— i.e., the lower of the two offered for each variety in the proposed rule—be applied throughout the model that is used to calculate payments.

We had proposed to use two discount rates to account for the fact that a canker-infected grove would, over time, produce less and lower-valued fruit, and thus would provide a lesser income stream than a canker-free grove. As we explained in the proposed rule, the 1-percent-higher discount rates proposed for canker-infected groves were intended to reflect increased risk, i.e., the decreased revenue stream. In light of the concerns raised by the commenters, we have reevaluated our ability at this time to accurately account for that increased risk through the use of a two-tier discount rate. Given the present unavailability of adequate supporting data, we have eliminated the two-tier discount rate from the payment calculation detailed in the proposed rule and will instead use a single discount rate throughout, i.e., 14 percent for grapefruit; 14.5 percent for tangelos and Valencia and navel oranges; and 13.5 percent for limes. The resulting payment adjustments are reflected in the per-acre payments listed in § 310.75-16(b) at the end of this document. However, we do believe that it is appropriate to account for the reduced revenues from infested groves and will continue to explore methods to consider such reduced revenues in the development of future payment or compensation programs.

The switch to the use of a single discount rate to calculate the per-acre payments provided for by this rule will increase the total estimated payments for commercial citrus trees destroyed or scheduled for destruction by March 9, 2001, by $6.34 million. Given that limited funding is available for the lost production payments in this rule and the tree replacement payments in § 301.75-15, we considered the possibility of initially paying a substantial portion, but not all, of the lost production payment calculated for each eligible grower; once each grower had received that partial payment, we would then distribute the remaining funds among all the eligible growers on a prorated basis (assuming there would be insufficient funds to provide each grower with 100 percent of the amount provided for in this rule). A two-part payment method such as this would ensure that all eligible commercial citrus growers would receive at least a percentage of the payments provided for by this rule. However, after considering the amount of remaining funds available for payments and assessing the situation in Florida with regard to the level of survey activity and the frequency of new citrus canker detections in commercial citrus groves, we have decided to not pursue the idea of partial payments at this time.

One factor that played an important role in our decision is the temporal limitation on eligibility contained in Sec. 810 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (Public Law 106-387). Specifically, Sec. 810(c) of that act states: “To receive assistance under this section [i.e., tree replacement and lost production payments], a tree referred to in subsection (a) [which refers to tree replacement payments] or (b) [which refers to lost production payments] must have been removed after January 1, 1986, and before September 30, 2001.” This act is the source from which we derive the majority of the funds ($58 million) for the lost production payments provided for by this rule and the tree replacement payments under § 301.75-15. 1 We expect that sufficient funds will be available to sustain the tree replacement and lost production payment programs until at least the September 30, 2001, close of the eligibility period provided for by Public Law 106-387. At some point after September 30, 2001, we expect that all available funds provided by Congress for these payments will have been depleted. We also recognize that there is the possibility that those funds could be depleted prior to September 30, 2001, should citrus canker be detected in an unexpectedly large number of commercial citrus groves in the coming months. Therefore, because our ability to offer the tree replacement payments provided for by § 301.75-15 and the lost production payments provided for by this rule (§ 301.75-16) is contingent upon the availability of appropriated funds, we must acknowledge that in the absence of additional funding, there is the possibility that we will be unable to continue paying claims filed by commercial citrus growers at some point before the close of this calendar year (2001).

Another factor in our decision to not pursue the idea of partial payments was our determination that doing so would further delay the issuance of the payments provided for by this rule. Given that the issue of partial payments was not raised in our December 2000 proposed rule, we believed the most appropriate and defensible action would have been to provide the public with an opportunity to submit comments on the subject through the publication of another proposed rule. The delay attendant to a new proposal is not, in our view, warranted by the facts of this case. While we are not pursuing the idea of partial payments at this time, we do welcome any thoughts that interested parties may have on the subject. A mailing address for the submission of such correspondence can be found at the beginning of this document under FOR FURTHER INFORMATION CONTACT.

Several commenters supported the use of more up-to-date price information in the calculation used to arrive at the per-acre payment presented in the proposed rule for limes. Most of these commenters indicated that they believed the proposed per-acre payment for limes was too low and supported the use of data provided by one of the commenters.

In the proposed rule, we explained that we calculated the per-acre net income for each variety of fruit using information obtained from the Florida Agricultural Statistics Service (FASS) and the University of Florida's Institute of Food and Agricultural Services (IFAS). As the data offered by one of the commenters was not reflected in the information we obtained from FASS and IFAS, we were unable to use those data in our calculations. Based on the information provided by that commenter—specifically, a per-box price for limes of $9.68 rather than the price of $9.11 used in the proposed rule—we have recalculated the per-acre payment for limes in this final rule. The adjusted payment is reflected in the per-acre payment for limes listed in § 310.75-16(b) at the end of this document.

On October 16, 2000, we published an interim rule (65 FR 61077-61080, Docket No. 00-037-1) that established § 301.75-15 in the regulations to provide for the payment of tree replacement funds to eligible owners of commercial citrus groves. One of the categories of citrus for which payments were provided in that interim rule was titled “Orange, early/midseason/navel.” In the proposed rule, however, we changed the title of that category to “Orange, navel” and explained that we were doing so to conform with the language used in Sec. 810 of Public Law 106-387 (i.e., the Department's fiscal year 2001 appropriation, which made $58 million available for payments to commercial citrus and lime producers in Florida). One commenter noted the difference in the titles and asked that we make it clear that the early and midseason oranges are still included in the “Orange, navel” category and that the payments discussed in the proposed rule will be made for early and midseason varieties in addition to navel oranges.

We do, as the commenter surmised, intend to include payments for early and midseason orange varieties in the “Orange, navel” category. To make that clear, we have amended the “Orange, navel” entry in the table in § 301.75-16(b)(1) at the end of this document to read “Orange, navel (includes early and midseason oranges).”

Two commenters noted that the proposed rule did not provide for payments for losses in production income associated with the removal of tangerine trees to control citrus canker and urged APHIS to establish a category for tangerines. Both commenters stated that it would be inappropriate to include tangerines in the proposed rule's “other or mixed citrus” category, given that the costs and revenues associated with tangerine production result in a per-acre net present value (NPV) for tangerine groves that exceeds the per-acre NPV calculated for the “other or mixed citrus” category. One of the commenters offered data to support the establishment of a tangerine category and suggested that, if tangerines were not afforded their own category, they should be considered in the Valencia orange category, which would provide for an NPV more reflective of market conditions.

Given that commercial tangerine trees have been removed as part of the citrus canker eradication program, we agree with the commenter that it is appropriate to provide for payments for lost production income to be made to the owners of commercial tangerine groves. Therefore, consistent with the suggestion offered by one of the commenters, we have amended the Valencia orange category in the table in § 301.75-16(b)(1) of this final rule to include tangerines.

One commenter disputed the validity of many of the data and assumptions used in the calculations that resulted in the per-acre payments presented in the proposed rule for each citrus variety. This commenter stated that the proposed payments were too high for groves with average or below-average production capacities and too low for other groves with above-average production capacity. This commenter suggested alternative data and methods related to planting densities, age of trees, yield per acre, and value per box for use in the model used to calculate payments, and requested that a measure of flexibility be incorporated into the rule to provide for the consideration of higher payments for growers who could demonstrate above-average returns from their groves.

While we acknowledge that some groves may outproduce others for any of several reasons, we believe that the approach and data we used to calculate per-acre payments in the proposed rule and in this final rule are valid and appropriate. In calculating the per-acre payments, we applied an accepted valuation model for determining NPV and used, as noted above, citrus industry economic and production information supplied by FASS and IFAS in that model. While a more precise valuation of individual groves might be obtained using the approach suggested by the commenter, we believe that it is necessary to retain the transparency and consistency afforded by the methodology we employed to calculate the per-acre payments presented in this final rule.

As noted previously, we published an interim rule on October 16, 2000, that established regulations in Subpart—Citrus Canker to provide for the payment of tree replacement funds to eligible owners of commercial citrus groves. That interim rule required, among other things, that claims for payments for destroyed trees must be received within 60 days after their destruction or, in the case of trees destroyed on or before the effective date of the interim rule, within 60 days after the interim rule's effective date. A similar provision was included in the proposed rule that preceded this final rule. We were subsequently informed by State officials that they had been unable to inform some grove owners in a timely manner of their eligibility to present claims, in most cases due to the fact that the person had sold the property and/or had moved out of State, thus delaying the notification that the State had provided to other grove owners. In order to provide us with the flexibility needed to address this situation, we intend to amend, in a separate document, the regulations in § 310.75-15(c) regarding the submission of tree replacement claims to provide that the Administrator may, on a case-by-case basis, approve the consideration of late claims when the circumstances appear, in the opinion of the Administrator, to warrant such consideration. Because the claim submission procedures established by this final rule are substantively the same as those in § 310.75-15(c), we have also amended § 310.75-16(c) in this final rule to provide for the consideration of late claims for up to 1 year after the effective date of this rule, in the case of trees destroyed on or before that effective date, or up to 1 year after the destruction of the trees in the case of trees destroyed after the effective date of this rule.

Other commenters questioned the efficacy of the approach and methods used by State and Federal officials in conducting the current citrus canker eradication program in Florida. Those comments did not relate to the regulatory provisions discussed in the proposed rule and are, thus, outside of the scope of this rulemaking.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

The following economic analysis provides a cost-benefit analysis as required by Executive Order 12866 and an analysis of the potential economic effects on small entities as required by the Regulatory Flexibility Act.

This rule amends the citrus canker regulations to establish provisions under which eligible owners of commercial citrus groves may, subject to the availability of appropriated funds, receive payments to recover production income lost as a result of the removal of commercial citrus trees to control citrus canker. These lost production payments are intended to help to reduce the economic effects of the citrus canker quarantine on affected commercial citrus growers.

As shown in the table below, the United States produced approximately 12,870 tons of oranges, grapefruit, limes, tangerines, and tangelos worth $2.29 billion in 1999, with Florida producing more than 80 percent of that total.

Removing the infected and exposed trees protects a substantial investment in other citrus groves. While the entire value of citrus produced is not at risk immediately from citrus canker, the disease would, if left unchecked, continue to spread. In time, the entire industry would be at risk.

According to the data provided to APHIS by the State of Florida, approximately 8,550 acres of commercial citrus trees have been destroyed or scheduled to be destroyed to control citrus canker by March 9, 2001. This figure includes an estimated 7,946 acres of commercial citrus that have been destroyed since the current citrus canker outbreak was detected in September 1995, as well as approximately 604 acres of grapefruit trees from 5 groves in Manatee and Highlands Counties that were destroyed between 1986 and 1990 to control citrus canker during a limited outbreak of the disease during that period.

As shown in the following table, which was prepared using the acreage estimates provided by the State of Florida and the per-acre payments contained in this rule, lost production payments for commercial citrus trees destroyed or scheduled for destruction by March 9, 2001, are expected to total about $46.05 million.

This rule establishes provisions under which eligible owners of commercial citrus groves may, subject to the availability of appropriated funds, receive payments to recover production income lost as a result of the removal of commercial citrus trees to control citrus canker. Therefore, the entities who will be affected by this rule are citrus growers. The Regulatory Flexibility Act requires that the Agency specifically consider the economic effects of its rules on small entities. The Small Business Administration (SBA) defines a firm engaged in agriculture as “small” if it has less than $500,000 in annual receipts. While the majority of citrus growers in Florida would be considered small entities under those SBA guidelines, those growers who would not be classified as small entities account for the majority of the citrus-growing acreage in the State. Based on available information, it appears that most of the citrus canker-related losses in Florida have been incurred by those larger citrus producers. Regardless of the size of the entities affected, we expect that this rule will benefit those commercial citrus growers who are eligible for lost production payments by helping to defray some of the losses and expenses that they have incurred as a result of the ongoing State and Federal efforts to eradicate citrus canker in Florida.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0168.

On February 13, 1998, Gulfstream Aerospace Corporation, 4150 Donald Douglas Drive, Long Beach, California 90808, applied for a supplemental type certificate (STC) to modify Gulfstream Model G-V airplanes. The Model G-V is a transport category to modify Gulfstream Model G-V airplanes. The Model G-V is a transport category airplane with a maximum takeoff weight of 90,500 pounds and powered by two BMW-Rolls Royce Mark BR700-710A1-10 engines. This airplane operates with a two-pilot crew and can hold up to 19 passengers.

The modification incorporates the installation of an Enhanced Vision System (EVS), consisting of a Honeywell 2020 head-up display (HUD) system modified to display forward-looking infrared (FLIR) imagery provided from a Kollsman FLIR assembly. The FAA has previously approved the Honeywell 2020 HUD.

The FAA only considered natural pilot vision for the pilot compartment view when issuing § 25.773. The electronic infrared image displayed between the pilot and the forward windshield represents a novel or unusual design feature in the context of § 25.773. The projection of electronic imagery has the potential to enhance the pilot's situational awareness. The FAA needs to evaluate EVS to determine that the imagery does not adversely affect the pilot's outside compartment view.

Although the FAA determined that the existing regulations are not adequate for certification of EVS, it believes that EVS could be certified through application of appropriate safety criteria. Therefore, the FAA has determined that special conditions should be issued for certification of EVS to establish an equivalent level of safety and effectiveness of the pilot compartment view as intended by the regulation.

Gulfstream and the FAA conducted an extensive proof of concept flight demonstration program and concluded that the EVS could be certified to provide an image that would aid the pilot during an instrument approach for detecting and identifying the visual references listed in Title 14, Code of Federal Regulations (14 CFR 91.175(c)(3)) for descent below decision height to 100 feet above touchdown. Conditions permitting, EVS may yield safety and operational benefits by providing the pilot with enhanced situational awareness.

Under the provisions of § 21.101 (“Designation of applicable regulations”), Gulfstream Aerospace Corporation must show that the Gulfstream Model G-V airplanes, as changed, comply with the regulations in the U.S. type certification basis established for the Model G-V airplane. The U.S. type certificate basis established for the Model G-V airplane is established in accordance with § 21.21 (“Issue of type certificate * * *”) and § 21.17 (“Designation of applicable regulations”), and the type certification application date. The U.S. type certification basis for this model airplane is listed in Type Certificate Data Sheet No. A12EA.

If the Administrator finds that the applicable airworthiness regulations ( i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Gulfstream Model G-V airplanes modified by Gulfstream Aerospace Corporation because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16 (“Special conditions”).

In addition to the applicable airworthiness regulations and special conditions, these Gulfstream Model G-V airplanes must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36.

Special conditions, as appropriate, are issued in accordance with § 11.19 (“What is a final rule?”), after public notice, as required by § 11.38 (“What public comment procedures does FAA follow for Special Conditions?”), and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should Gulfstream Aerospace Corporation apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

The Gulfstream EVS project is the first civil certification of infrared imagery displayed on a HUD. This EVS is novel or unusual technology because it places a raster* infrared image in the center of the pilot's regulated “pilot compartment view,” which must be free of interference, distortion, and glare that would adversely affect the performance of the pilot's normal duties. (*A “raster” image is comprised of a set of horizontal lines that continuously sweep across the display and form a picture on the display by modulating their intensity (luminance).) The EVS/HUD system projects a raster image derived from a forward-looking infrared (FLIR) camera onto the display of the Honeywell HUD 2020 system. The EVS image is displayed with HUD symbology and overlays the forward outside view.

Operationally, during an instrument approach, the EVS image is intended to enhance the pilot's ability to detect and identify “visual references for the intended runway” (see § 91.175(c)(3)), to continue the approach below decision height. Depending on atmospheric conditions and the strength of infrared energy emitted and/or reflected from the scene, the pilot can see these visual references in the image better than the pilot can see them through the window without EVS.

Scene contrast detected by infrared sensors can be much different than that detected by natural pilot vision. On a dark night, thermal differences of objects, which are not detectable by the naked eye, will be easily detected by many imaging infrared systems. On the other hand, contrasting colors in visual wavelengths may be distinguished by the naked eye, but not by an imaging infrared system. Where thermal contrast in the scene is sufficiently detectable, shapes and patterns of certain visual references can be recognized in the infrared image by the pilot, but, depending on conditions, they can also appear significantly different to a pilot in the infrared image than they would with normal vision.

There is the potential for the image to improve the pilot's ability to detect and identify items of interest. EVS needs to be evaluated to determine that the imagery does not adversely affect the pilot's ability to see outside the window through the image. Section 25.773(a)(2) states:

A raster image can be more difficult for the pilot to see through than stroke-written symbols also displayed on the HUD. Stroke symbology illuminates a small fraction of the total display area of the HUD, leaving much of that area free of reflected light that could interfere with the pilot's view out the window through the display. However, unlike stroke symbology, the raster image illuminates, to some degree, most of the total display area of the HUD (approximately 30 degrees horizontally and 20 degrees vertically) with much greater potential interference with the pilot compartment view. The pilot cannot see around the raster image, but must see the outside scene through it.

Unlike the pilot's external view, the EVS image is a monochrome, two-dimensional display. Some, but not all, of the depth cues found in the natural view are also found in the imagery. The quality of the EVS image and the level of EVS infrared sensor performance could depend significantly on the atmospheric and external light source conditions. Gain settings of the sensor, and brightness or contrast settings of the HUD, can significantly affect image quality. Certain system characteristics could create distracting and confusing display artifacts. Finally, because this is a sensor-based system that is intended to provide a conformal perspective corresponding with the outside scene, the potential for misalignment must be considered.

Hence, safety standards for each of the following factors are needed:

• An acceptable degree of interference of the window or “window and HUD” view;

• Potential image misalignment;

• Distortion; and

• The potential for pilot confusion or misleading information.

The FAA did not anticipate the novel and unusual design features of the EVS when § 25.773 was issued, and does not consider the current regulation to be adequate to address the specific issues related to an enhanced vision system. Therefore, the FAA has determined that, in addition to the requirements of 14 CFR part 25, special conditions are needed to address requirements particular to the installation of an EVS.

Gulfstream Aerospace Corporation intends for the EVS to function by presenting an enhanced view that would aid the pilot, during the approach:

• To see and recognize external visual references that are required by § 91.175(c), and

• To visually monitor the integrity of the approach, as described in FAA Order 6750.24D (“Instrument Landing System and Ancillary electronic Component Configuration and Performance Requirements,” dated March 1, 2000).

Based on this functionality, users would seek to obtain operational approval to conduct approaches when the Runway Visual Range (RVR) is as low as 1,200 feet, including approaches to Type I runways. Gulfstream does not intend, and the FAA does not intend by these special conditions for the EVS imagery to be used either as a means of flight guidance, or as the substitution for the outside view while maneuvering the airplane during approach, landing, rollout, or takeoff.

The criteria of these special conditions were developed to determine that this EVS is of the kind and design appropriate to the following functions:

• Presenting an enhanced view that would aid the pilot during the approach.

• Displaying an image that the pilot can use to detect and identify the “visual references for the intended runway” required by § 91.175(c)(3) to continue the approach with vertical guidance to 100 feet height above touchdown (HAT).

Depending on the atmospheric conditions and the particular visual references that happen to be distinctly visible and detectable in the EVS image, these two functions would support its use by the pilot to visually monitor the integrity of the approach path.

Compliance with these special conditions does not affect the applicability of any of the requirements in the operating regulations ( e.g., parts 91, 121, and 135). The EVS does not change the approach minima prescribed in the standard instrument approach procedure being used; published minima still apply.

The FAA certification of this EVS is limited as follows:

• The infrared-based EVS image will not be certified as a means to satisfy the requirements for descent below 100 feet HAT.

• The infrared-based EVS image will not be certified as a means to establish that flight visibility is consistent with the visibility condition prescribed in the standard instrument approach being used ( see § 91.175(c)(2)).

• The EVS imagery, alone, will not be certified either as flight guidance, or as a substitution for the outside view for maneuvering the airplane during approach, landing, rollout, or takeoff.

• The EVS may be used as a supplemental device to enhance the pilot's situational awareness during any phase of flight or operation in which its safe use has been established.

An EVS image may provide an enhanced image of the scene that may compensate for any reduction in the clear outside view of the visual field framed by the HUD combiner. The pilot must be able to use this combination of information seen in the image, and the natural view of the outside scene seen through the image, as safely and effectively as the pilot would use a § 25.773-compliant pilot compartment view without an EVS image. This is the fundamental objective of the special conditions.

The FAA also intends to apply certification criteria, not as special conditions, for compliance with other Federal Aviation Regulations, including § 25.1301 (“Equipment: Function and installation”) and § 25.1309 (“Equipment, systems, and installations”). These criteria address certain image characteristics, installation, demonstration, and system safety.

Image characteristics criteria include:

• resolution,

• luminance,

• luminance uniformity,

• low level luminance,

• contrast variation,

• display quality,

• display dynamics (for example, jitter, flicker, update rate, and lag), and

• brightness controls.

Installation criteria address:

The EVS demonstration criteria address the flight and environmental conditions that need to be covered.

The FAA also intends to apply certification criteria relevant to high intensity radiated fields (HIRF) and lightning protection.

Notice of proposed special conditions No. 25-01-02-SC for Gulfstream Model G-V airplanes was published in the Federal Register on March 16, 2001 (66 FR 15203). Eighteen commenters, including the applicant, responded. A discussion of the comments follows, along with the FAA's disposition of those comments.

Several commenters recommend withdrawal or revision of paragraph 4. and provide the following comments in support of this recommendation.

Two commenters state that it is not clear why operational restrictions are specified within the special conditions, and recommend that all references and attempts at rulemaking and rule interpretations of parts 91 and 97 be withdrawn and removed.

Another commenter states that paragraph 4. may not be accurate as a categorical statement for the future. There could be other images developed in the future that may have greater capabilities than FLIR; hence, this statement could be mistakenly interpreted to rule out any chance of progress in this area.

One commenter states that the proposed language is a precedent-setting prohibition against the reduction of ceiling and visibility minimums through EVS usage.

The same commenter also states that the extensive investments by NASA and industry to develop commercially viable and certifiable enhanced and synthetic vision products to increase the overall safety are viewed as jeopardized by the operational restrictions contained within the proposed special conditions.

Two commenters contend that the use of EVS to lower landing minimums is not an issue that is historically addressed by FAA Aircraft Certification, but by FAA Flight Standards. Following some period of operational use, Flight Standards may or may not see fit to allow the use of an enhanced vision image to replace visual contact below the normal decision height.

Several commenters state that paragraph 4. is beyond the scope of the rulemaking and outside the authority established by § 21.16 in that it establishes interpretations of operating rules.

One commenter objects to the use of the special conditions by the Aircraft Certification Service to prescribe operational limits. Approach limits are codified rather than allowing for growth of the system into one with reduced limits.

Another commenter states that the proposed special conditions set the overall policy direction for all future HUD and EVS installations. The commenter goes on to say that even though the rule is written as a part 91 only concern, the philosophy will carry forward and affect part 121 operators as well.

Three commenters recommend the following revisions to paragraph 4.:

• Delete the first sentence,

• Replace the reference to “100 ft. HAT” with “to an appropriate height above touchdown,”

• Add a paragraph 4.c. that states, “presenting an image that would act as an independent integrity monitor during the approach,” and

• Revise paragraph 4. to read, “The use of EVS will not reduce the ceiling and visibility minima of the instrument approach procedure being used, unless an equivalent level of task performance and safety required for that reduced visibility minima can be achieved.”

The FAA agrees that special conditions should not establish interpretations of the operating rules. The special conditions are not intended to create, change, restrict, or reinterpret provisions of the operational rules, including those related to ceiling and visibility minima. Special conditions paragraph 4. is meant to define the intended function for which this EVS would be certified, since installed equipment must be of a type and design appropriate to its intended function. If future applicants propose to expand the intended functions of this or similar equipment, different special conditions may be necessary to identify the appropriate certification criteria for those intended functions.

The FAA does not agree that references to operational regulations should be deleted. Section 91.175(c)(3) is only mentioned to clarify a function of the EVS that the pilot may use to detect and identify “visual references.”

The first sentence of special conditions paragraph 4. is not an operational restriction. Instead, the intent of that sentence was to clarify that the airworthiness approval of EVS does not reduce or override the established ceiling and visibility minima that are legally prescribed in the standard instrument approach procedure. In fact, airworthiness approval of any equipment, whether it uses a raster image or not, cannot take precedence over the established minima. The special condition does not impose this limitation; it acknowledges it. When the notice was issued, there were no published instrument procedures that prescribed different minima for operators of EVS-equipped airplanes.

The FAA agrees that FAA Flight Standards is responsible for determining operational requirements. However, it is also true that the requirements of the existing operational regulations are mandatory. Flight Standards may choose to approve different minima for operators of EVS-equipped airplanes either by revising the operational rules or instrument approach procedures to specify minima for EVS-equipped airplanes. As needed, Flight Standards would also determine in the future whether different minima would be applied to operators of airplanes equipped with this or other EVS configurations. Therefore, the FAA does not agree that the first sentence of special conditions paragraph 4. should be revised to add the phrase “unless an equivalent level of task performance and safety required for that reduced visibility minima can be achieved.”

The FAA also does not agree that the first sentence of paragraph 4. should be deleted. However, to clarify the intent of the first sentence, it is changed to read: “Compliance with these special conditions does not affect the applicability of any of the requirements in the operating regulations ( e.g., parts 91, 121, 135).

The FAA does not agree that the reference to “100 feet HAT” should be replaced with “an appropriate height above touchdown.” Section 91.175(c)(3) (as well as respective provisions in parts 121 and 135) distinguishes between visual references required for descent below decision height and those required for descent below 100 feet HAT. The Gulfstream Proof of Concept (PoC) Flight Test Report recommended that descent below 100 feet HAT must not be predicated on EVS imagery alone. To make such a change as requested would require separate rulemaking to change the relevant regulations.

The FAA does not agree that a new paragraph 4.c. needs to be added to address the use of the EVS as an independent monitor. The pilot may use the EVS image to identify certain visual references that serve as airplane position cues. The EVS sensor performance (i.e., what can be seen and at what distance) in the actual atmospheric conditions will affect the usefulness of the image for the purpose of verifying airplane position. Special conditions paragraph 4., with its subparagraphs, does not explicitly list the function of “integrity monitor” for the guidance, but this function is covered within the dual intended function of “presenting an image that would aid the pilot during the approach” and “that the pilot can use to detect and identify the visual references” [§ 91.175(c)(3)]. The EVS cannot be an independent monitor in the same sense as the term is normally used. Normal use of this term is automatic detection and annunciation of system performance deviations and failure conditions.

One commenter submitted the following questions to the FAA docket for these special conditions. Each question is followed by an FAA response which is based on the plain reading of the regulatory requirements; specifically, the applicability of the operational regulations ( e.g., parts 91, 121, 135) is the same whether EVS is installed or not.

Question: Paragraph 4. of the proposed special conditions states: “The use of EVS will not reduce the ceiling and visibility minima of the instrument approach procedure being used.” What is the purpose of this statement? Is this a reference to § 91.175(c)(2), and would this preclude operation below DH or HAT if the requirements of § 91.175(c)(3) were met with EVS alone but the flight visibility was less than the visibility prescribed in the approach being used?

FAA Response: The first sentence of special conditions paragraph 4. is meant to clarify that the airworthiness approval of EVS under part 25 does not reduce or override the established ceiling and visibility minima that are legally prescribed in the standard instrument approach procedure.

To clarify the intent of the first sentence, it is changed to read: “Compliance with these special conditions does not affect the applicability of any of the requirements in the operating regulations ( e.g., Parts 91, 121, 135).”

Question: With respect to item 4(b); would the pilot be allowed to continue the approach below a 200 foot HAT to 100 feet, if the EVS detected the required “visual references for the intended runway” but the flight visibility was less than the visibility prescribed for the approach being used?

FAA Response: As stated previously, the applicability of the operational regulations (e.g., parts 91, 121, 135) is the same whether EVS is installed or not. Descent and operation below decision height is not permitted by § 91.175 and similar provisions of other operational parts, as applicable, when flight visibility is less than prescribed in the standard instrument approach procedure being used.

Question: In paragraph eight of the “Discussion” the FAA states: “However, the FAA finds that it would not be appropriate to reduce the ceiling and visibility minima of the instrument approach procedure being used based on the use of EVS.” Is this a reference to § 91.175(c)(2) and would this preclude a descent below a 200 foot HAT minimum to 100 feet if the requirements of § 91.175(c)(3) were met with the EVS?

FAA Response: This sentence was not clearly stated. The intent was to say that compliance with the criteria of these special conditions does not affect the applicability of any of the requirements in the operating regulations (e.g., Parts 91, 121, 135). A descent would be permitted only if all requirements of § 91.175 are met. The first sentence of special conditions paragraph 4. is revised accordingly.

Question: Reference paragraph ten of the “Discussion” section: “The infrared-based EVS image will not be certified as a means to satisfy the requirements for descent below 100 feet HAT.” Does this statement mean that, if the pilot meets the requirements of § 91.175(c)(3) with EVS alone at a 200 foot HAT, then he may descend to a 100 foot HAT?

FAA Response: No, this statement means that, in order for the pilot to descend below 100 feet HAT, the requirements of §§ 91.175(c) and (d) must be met without the aid of EVS. The pilot may use EVS below 100 feet HAT, but the visual references must be distinctly visible and identifiable with the naked eye.

Question: If the flight visibility is less than the prescribed visibility for the approach being used, but the requirements of § 91.175(c)(3) at 200 feet HAT are met, may the approach be continued to a 100 foot HAT on EVS alone?

FAA Response: As stated previously, the applicability of the operational regulations (e.g., parts 91, 121, 135) is the same whether EVS is installed or not. Descent and operation below decision height is not permitted by § 91.175 and similar provisions of other operational parts, as applicable, when flight visibility is less than prescribed in the standard instrument approach procedure being used.

Descent below the 200 foot decision height cannot be based on EVS alone. To use EVS for the descent below decision height, precision approach guidance must also be provided on the HUD. With valid precision approach guidance provided on the HUD, EVS may be used to meet the requirements of § 91.175(c)(3) from the decision height to 100 feet HAT.

Question: The following example is provided in an attempt to clarify to all parties the suggested operating rules.

In this situation, may the pilot commence the approach?

FAA Response: Based on the situation described in the commenter's question above, the Part 91 operator can commence the approach. However, Part 121 and Part 135 operators may not.

Question: At 200 feet the pilot meets the requirements of § 91.175(c)(3) with EVS alone, may he continue to 100 feet?

FAA Response: This response is based on the situation described above by the commenter. As stated previously, the applicability of the operational regulations (e.g., parts 91, 121, 135) is the same whether EVS is installed or not. Descent and operation below decision height is not permitted by § 91.175 and similar provisions of other operational parts, as applicable, when flight visibility is less than prescribed in the standard instrument approach procedure being used.

Descent below the 200-foot decision height cannot be based on EVS alone. To use EVS for the descent below decision height, precision approach guidance must also be provided on the HUD. With valid precision approach guidance provided on the HUD, EVS may be used to meet the requirements of § 91.175(c)(3) from the decision height to 100 feet HAT.

Question: At 100 feet the pilot meets the requirements of § 91.175(c)(3) without the aid of EVS, may he continue to land?

FAA Response: This response is based on the situation described above by the commenter. As stated previously, the applicability of the operational regulations (e.g., parts 91, 121, 135) is the same whether EVS is installed or not. Operation below decision height is not permitted by § 91.175 and similar provisions of other operational parts, as applicable, when flight visibility is less than prescribed in the standard instrument approach procedure being used.

Several commenters state that the FAA has failed, in accordance with § 21.16 and FAA Handbook 8110.4B, to justify the need for special conditions. The commenters state that the existing regulations (§§ 25.773, 25.1301, and 25.1309) contain the necessary requirements, and the proposed special conditions serve no additional purpose. Two of these commenters recommend that the special conditions be withdrawn and paragraphs 1., 2., and 3. be developed in a method of compliance issue paper. One of these commenters states that even if the raster display of an FLIR image on the HUD is deemed novel or unusual, regulations are in place to assure safety.

The FAA disagrees. The legal basis for the special conditions was carefully reviewed by the FAA and deemed appropriate. As discussed in the preamble of the notice, and these final special conditions, the FAA issues special conditions when it determines that the existing airworthiness standards do not contain adequate or appropriate safety standards for a novel or unusual design feature. The regulatory process for issuing special conditions provides for public notification and opportunity for comment on the proposed certification criteria, and promotes standardization of new FAA certification requirements.

The FAA does not agree that § 25.773 is adequate for certification of the EVS. When the FAA issued § 25.773, it did not anticipate the display of an electronic image in the regulated field of view, and did not account for the potential of the EVS imagery to help achieve the safety objectives of the pilot compartment view. As discussed in the notice, the EVS image is different from the natural pilot vision that was assumed when § 25.773 was issued. The differences include:

• Image resolution compared to a pilot's vision,

• Monochrome image compared to color vision,

• Fewer cues for depth perception, and

• The thermal response characteristics of an infrared sensor compared to the color discrimination of pilot vision.

Additionally, the EVS raster image could potentially interfere with the pilot view. The raster image covers most of the combiner at one time, unlike stroke-written HUD symbology, which covers much less combiner area. Because none of the regulations referenced by the commenters contain criteria for evaluating these issues, the FAA has determined that those regulations are inadequate for certification of the EVS. For these reasons, the FAA determined that the EVS is novel and unusual with respect to current airworthiness regulations, and special conditions are needed.

One commenter states that the FAA has failed to provide an adequate explanation for the basis of the “novel and unusual design feature.”

The special conditions are not merely a new means of compliance with § 25.773, rather they provide a new requirement and a regulatory path to certify the EVS and achieve an equivalent level of safety. The fundamental requirement contained in the special conditions, not found in § 25.773, is that the combination of what the pilot sees in the EVS image and what the pilot sees through and around the image must be as safe and effective as the view without the image. The FAA considers that the level of safety provided by the special conditions is equivalent to the level of safety intended by § 25.773.

Two commenters state that Aerospace Standard AS8055 already establishes standards for EVS and therefore the special conditions are unnecessary. One of the commenters states that the FAA requested industry to recommend standards for head up displays, which resulted in the SAE Aerospace Standard AS8055 that recommends standards for HUD's, including raster displays.

The second commenter states that the basis for the special conditions is inadequate, and the rationale is one of opinion. This commenter goes on to say that the special conditions make no mention of certain documents (AC 25.773-1, AC 120-28D, SAE AS8055). The commenter contends that these documents adequately describe HUD and EVS design for certification purposes, without the need for special conditions.

The FAA does not agree. While the FAA did request that SAE develop standards for head up displays, they do not take the place of airworthiness regulations or special conditions. Industry standards, alone, are not mandatory. The FAA request that SAE develop these standards does not contradict the need for special conditions.

Nevertheless, AS8055 contains extremely useful industry developed standards, particularly regarding raster display quality, that have been adapted to the fullest possible extent in a separate means of compliance issue paper for EVS certification. The current AS8055 addresses head up displays and the information presented on them, including raster imagery, but not imaging sensors, such as the infrared camera used in the Gulfstream EVS.

Advisory Circular (AC) 25.773-1 provides criteria for an acceptable means of compliance with § 25.773, but does not address the display of electronic imagery in the regulated pilot compartment view. The FAA therefore found no reason to refer to this document in the notice.

Advisory Circular (AC) 120-28D provides a means of compliance for Category III low visibility operations and certification of equipment designed for that purpose. The Phase I Gulfstream EVS is not intended for Category III operations, and therefore the FAA did not find a reason to refer to this AC in the notice.

One commenter contends that the FAA's main argument revolves around § 25.773(a)(2), which states, “Each pilot compartment must be free of glare and reflection that could interfere with the normal duties of the minimum flight crew.” The commenter further states that this could equally apply to stroke-only HUD's which are currently certified.

Another commenter states that the notice is in error, since § 25.773 has been cited and accepted as a means of compliance for many HUD programs.

A third commenter states that although § 25.773 does not directly mention an EVS imagery display, this regulation, in combination with other pertinent regulations, contains the necessary and sufficient requirements for determining an acceptable pilot compartment view. The commenter asserts that these same existing regulations have been successfully applied to HUD's for several years.

The FAA does not agree. Stroke-written HUD symbology and raster imagery have significantly different characteristics. As explained in the notice, stroke-written HUD symbology illuminates a small fraction of the HUD combiner area (approximately 20 by 30 degrees) at any one time. The imagery, on the other hand, can illuminate almost all of the HUD at one time. The pilot can see through the relatively large “unlit spaces” between HUD symbols with very little visual interference, but the EVS design provides no such spaces in the raster imagery. Consequently, depending on the content at any time, the EVS image might interfere with much more of the pilot's view.

Unlike § 25.773, the special conditions account for this potential interference by also considering that the EVS image may also provide useful information which, in combination with what the pilot can see through the image, is as safe and effective as the pilot's view without the image.

One commenter states that the EVS application may be novel and unusual (that is, for commercial aircraft); however the technology is not. This technology, including raster images on a HUD, has been in use by the military. The commenter states that special conditions are premature and the issue should be studied.

The FAA disagrees. The phrase “novel or unusual” is used in § 21.16 in the context of existing regulations. Under the provisions of § 21.16, the FAA issues special conditions when it determines existing airworthiness regulations do not contain adequate safety standards for a novel or unusual design feature. The special conditions are issued to establish a level of safety equivalent to that established in the existing regulations.

Granted, elements of the EVS have been in use in the military, even to the extent of displaying infrared imagery on a HUD. However, military use of this technology differs from this civil application, and the level of safety required of military systems used in combat operations differs from what is required for civil transport airplane airworthiness. As previously stated in this document in response to other comments, certain design features of the EVS are considered novel or unusual with respect to the current airworthiness standards, and the FAA has determined that special conditions are needed.

One commenter suggests that the special conditions be deferred and modified as necessary so that they are supported by data and analysis. The commenter suggests that until that time, the FAA could make a determination regarding certification of EVS systems on a case by case basis.

Another commenter considers the special conditions to be premature in that they are based on “findings” that are not supported by real data or analysis, and therefore are actually based on opinions. The commenter states they participated in the Synthetic Vision System (SVS) program and that most of the key elements of the proposed special conditions are not supported by the FAA SVS database.

The FAA does not agree that the special conditions are premature, or that the criteria for applying the special conditions for the EVS is not supported by data and analysis.

The FAA did, in fact, consider the reported findings of the FAA Synthetic Vision System Technology Demonstration program, and the Gulfstream proof of concept (PoC) flight test. The large FAA SVS database is primarily measured sensor performance with measured atmospheric and scene conditions. Many of the issues raised and considered in the FAA SVS program are addressed in these special conditions and in a means of compliance issue paper. As explained in the notice, and earlier in these final special conditions in response to other comments, the electronic EVS image is different from the pilot's natural vision and was not anticipated when § 25.773 was issued, so the FAA determined that special conditions are needed.

While the FAA believes, based on the PoC results, that the Gulfstream EVS can be safely certified, that does not mean safety standards are unnecessary. The safety standards covered by the special conditions are based on issues investigated during the PoC of the Gulfstream EVS and the earlier FAA SVS program.

These special conditions are specific to the Gulfstream certification project. If appropriate, different special conditions may be adopted for future programs involving similar equipment. The FAA is making these certification determinations on a case-by-case basis.

One commenter states that the FAA failed to properly take into account the results of the FAA proof of concept program. The test program required two years and over 200 approaches flown by FAA selected pilots and specialists, and the report states that the HUD and the EVS did not obscure the pilot's forward field of view and did not interfere with the pilot's view of the runway during the landing approach.

Another commenter is of the opinion that the FAA completely ignored the PoC tests. The commenter states that the FAA is not justified in issuing the proposed special conditions since the results of extensive evaluations during FAA-mandated PoC flight tests concluded that the EVS could be certified and safely used in transport category operations under existing airworthiness certification standards.

Another commenter states that the FAA failed to recognize test results that show the good faith effort in addressing the concerns related to safe and effective use of the EVS. The commenter contends that the EVS proof-of-concept tests concluded that the EVS provided situational awareness, did not obscure the pilot's view, and did not interfere with the pilot's view of the runway. As such, it is compliant with the intent of § 25.773.

A fourth commenter states that it is surprising that the notice, which lists the criteria for issues that must be addressed for the EVS, makes no reference to the findings of the PoC flight test results that conclude these issues are not a concern.

The FAA does not agree with the commenters that the PoC test results were not considered in determining the need for special conditions. The purpose of the PoC is to determine what would be operationally acceptable and what standards or criteria are needed for airworthiness approval. It is not the purpose of the PoC to determine whether or not the safety standards must be contained in special conditions.

While the FAA concluded, based on the PoC results, that the Gulfstream EVS could be safely certified, it did not conclude that safety standards were unnecessary. The safety standards covered by the special conditions are not based on deficiencies of the Gulfstream EVS, but rather on issues that were investigated during the PoC and the earlier FAA SVS program. While the PoC test results show that the EVS image does not obscure the pilot's view, there must be appropriate safety standards for the impact of the EVS image on the pilot's view.

The FAA actions have been consistent with the PoC process as outlined in paragraph 10.18 of Advisory Circular 120-28D. As stated earlier, the special conditions provide a legal avenue to certify this system.

One commenter states that reduced visibility is a major or contributing factor in many civil aircraft accidents. If the pilot could have had the real-time information provided by EVS, a significant number of these accidents could have been avoided. The commenter asserts that the EVS can save lives now, and recommends that the FAA continue to understand and not delay the benefits of EVS to the air transportation system.

Another commenter states that new technology that provides enhanced aircraft safety should be certified and deployed in a quick and orderly fashion, rather than through a long series of disjointed special conditions. It is the commenter's opinion that this is detrimental both to the FAA and airlines through unnecessary delays, and to the traveling public who deserve improved safety of flight.

A third commenter believes that the EVS will provide operational safety improvement. The commenter states that EVS technology is specifically aimed at eliminating low-visibility conditions as a causal factor in civil aircraft accidents, and that if installed, the EVS will provide operational benefits approaching those found in clear daytime operations, regardless of weather conditions.

The FAA agrees in part with the commenters. Indeed, EVS may be able to improve safety in certain conditions and phases of flight. The FAA acknowledges that the EVS image may improve the pilot's ability to detect and identify items of interest. The application of safety standards through special conditions does not prevent the use of EVS in ways that would enhance safety. The EVS may be used for any operation or phase of flight where it is shown to be safe.

It has not yet been demonstrated that the Gulfstream EVS can actually provide benefits equivalent to conventional clear daytime operations in all low visibility conditions. The infrared sensor is affected by the same visible moisture that is often the cause of low visibility conditions. Nevertheless, the actual operational benefits that the EVS can provide will be shown in due time with the accumulation of service experience.

The FAA has not delayed the certification project, or the safety or operational benefits that the EVS might provide. Publication of these final special conditions has not adversely impacted the overall certification program schedule.

One commenter states that the notice raises concern that the reported visibility (visible spectrum) would not be consistent with the IR visibility “seen” by the EVS, and that this is a valid operational concern, but not a certification issue.

The same commenter also states that the current regulations do not permit any operator to descend below the published approach minimums, unless the visibility is at least that prescribed in the instrument approach procedure being used. The commenter says that the current regulations do not address electronic aiding, and recommends that the following statement be added to the AFM limitations: “Installation of the EVS does not constitute approval to continue an approach below decision height.”

The FAA disagrees. The notice addressed “flight visibility,” not reported visibility. The two terms are distinctly different. For descent below decision height, § 91.175(c)(2) requires that “flight visibility,” which is the forward horizontal distance that unlighted objects can be seen from the cockpit by day, and lighted objects by night, be no less than the visibility prescribed in the standard instrument approach procedure being used.

The FAA agrees that the requirements for approach, including flight visibility, are established by operational regulations, particularly parts 91, 121, and 135, and are therefore operational concerns. However, the requirement that installed equipment must be of a type and design to perform its intended function, defined in special conditions paragraph 4. for certification purposes, is a valid airworthiness certification concern.

The FAA agrees that current regulations do not address electronic images in the pilot compartment view regulated by § 25.773. As stated earlier, the special conditions are considered necessary because § 25.773 is not adequate for the novel or unusual design features of the EVS. However, the special conditions do not address whether operational regulations adequately address the use of the EVS and do not create, change, restrict, or reinterpret the operational requirements.

The FAA does not agree with the recommended change to the AFM limitations, because it appears more conservative than the FAA concluded is necessary. One conclusion drawn from the PoC testing was that the visual references listed in § 91.175(c)(3) could be detected and identified in the EVS image, and that the ability to do this could be evaluated. The FAA has revised the first sentence of paragraph 4. to clarify that the use of EVS does not affect the applicability of the operational requirements.

Two commenters state that the FAA needs to review processes that were followed to ensure that FAA personnel are fully aware of their responsibilities to raise such concerns early in a program.

The commenters express the opinion that the FAA did not follow the principles of the certification process improvement effort. The principles include surfacing issues early in the program so that they can be resolved before they have an adverse effect on the ability of the applicant to certify the product in accordance with the program schedule.

The FAA disagrees. Although the need for special conditions was not known in the beginning of the program, the need for special conditions was identified early enough in the program to not impact the certification schedule.

Two commenters express the opinion that the language and limitations contained in the notice are prejudicial against EVS and HUD developments. One has concerns about the future FAA response to new safety technologies and many other proposed safety systems to meet the goals of the Safer Skies program.

Another commenter states that the proposed special conditions do not accurately represent the Gulfstream EVS program. The commenter asserts that the EVS would enhance the ability of the pilot to see and identify visual references to continue an approach to a decision point of 100 feet for Phase I and 50 feet for Phase II. It is the commenter's opinion that the special conditions create a negative impression of EVS technology, which further reflects a biased judgment against EVS and is contrary to the conclusions reached under the controlled evaluations.

The FAA disagrees. The special conditions are not intended to be a reference to the product or a commentary on the product's success. Differences between EVS infrared imagery and natural pilot vision were described in the preamble of the notice for the purpose of addressing the uniqueness of the EVS and the need for safety standards to address the differences. That an EVS image has the potential to interfere or obscure the pilot's view does not mean that an EVS is unacceptable, but that the product needs to be evaluated with these potential characteristics in mind to maintain the level of safety established by the current airworthiness standards.

The special conditions are not intended to characterize the Gulfstream EVS project. The requirements in the proposed special conditions, and adopted in these final special conditions, are intended to provide safety standards for this EVS to meet, and to ensure that such a determination is made during certification, not to imply that this EVS is unacceptable. The special conditions address Phase I of the Gulfstream project, and anything beyond Phase I will be addressed outside this rulemaking activity.

One commenter states that the notice denies the following uses of the EVS:

• As a substitution for the real-world view,

• As a means to establish that flight visibility is consistent with the visibility condition prescribed in the standard instrument approach being used,

• As a means to reduce the ceiling and visibility minima of the instrument approach procedure being used, and

• As a means to satisfy the requirements for descent below 100 feet HAT.

Another commenter states that there could be other images developed in the future that may have greater capabilities than FLIR. Paragraph 4. of the proposed special conditions could be mistakenly interpreted to rule out any chance of progress in this area.

The FAA disagrees. The special conditions do not deny or restrict the use of EVS. Rather, the language referred to in the comment (and discussed in the preamble to the notice) defines what intended functions it is being certified for and the limits of that airworthiness certification approval. Unless found unsafe during any operation or phase of flight, this would not limit the use of EVS as a supplemental device, nor would it restrict the role of Flight Standards to authorize the use of EVS.

The first sentence of special conditions paragraph 4. is not an operational restriction; instead, it is meant to clarify that the airworthiness approval of EVS, itself, does not reduce or override the established ceiling and visibility minima prescribed in the standard instrument approach procedure. In fact, airworthiness approval of any equipment, whether it uses a raster image or not, cannot take precedence over the established minima. These special conditions do not impose this limitation; they acknowledge it. When the notice was issued, there were no published instrument procedures that prescribed different minima for operators of EVS-equipped airplanes.

To clarify the intent of the first sentence of special conditions paragraph 4., it is changed to read: “Compliance with these special conditions does not affect the applicability of any of the requirements in the operating regulations (e.g., parts 91, 121, 135).”

FAA Flight Standards has the authority to determine operational requirements. However, it is also true that the requirements of the existing operational regulations are mandatory. Flight Standards may choose to approve different minima for operators of EVS-equipped airplanes. As needed, Flight Standards would also determine in the future whether different minima would be applied to operators of airplanes equipped with this or other EVS configurations.

One commenter provided the following comments relative to paragraph 2.a.:

• “Burlap overlay” is not defined in the examples provided in paragraph 2.a.

• Use of FLIR, under some circumstances, may not be desirable or an improvement over the pilot's vision, and may not be appropriate.

• The ability to easily dim and/or clear the image on the HUD should be incorporated to permit removal of the image quickly, if conditions are not favorable.

FAA clarification of each issue is as follows:

“Burlap overlay” is one example of a display artifact that has a burlap-like appearance and was observed during the PoC flight testing. It could be distracting to the pilot, make the image difficult to use, and potentially interfere with the pilot's outside view.

The FAA agrees with the commenter that in some circumstances the EVS image may not be desirable, and that is why paragraph 2.c. of the special conditions requires that a readily accessible control be provided for the pilot to immediately deactivate and reactivate display of the image on demand.

The FAA agrees with the commenter that the ability to dim or clear the image on the HUD should be incorporated, and that is why paragraph 2.b. of the special conditions requires effective control of image brightness, and paragraph 2.c. requires that a readily accessible control be provided for the pilot to immediately deactivate and reactivate display of the image on demand.

One commenter interprets special conditions paragraph 2.f. to mean that the EVS image must not affect the performance of the pilot in the use of the HUD for previously approved operations. The commenter assumes that the EVS image may be removed during those operations (or phases) which could be impacted, and states that the EVS image may need to be automatically deactivated during certain phases of flight, perhaps at or prior to decision height during a low visibility approach.

The objective of paragraph 2.f. is that the EVS installation would not adversely affect the ability of the HUD to meet any requirement to which it was originally certified. Whether or not the EVS image must be removed for some phases of flight to comply with this paragraph must be determined on a case-by-case basis. If there are cases where removal of the image is required, automatic means to deactivate the image would not be required, unless it is shown that manual procedures to deactivate the image are inadequate.

The commenter interprets paragraph 3. as follows: “The EVS image must not interfere in the pilot's detection of traffic, terrain, obstacles, and other hazards of flight. The assumption is that objects are recognizable within the EVS image, or visual objects are still recognizable through the EVS image.”

The commenter's interpretation with respect to the ability of the pilot to “see” discrete visual items is correct. For completeness, though, one must also determine if there are characteristics that adversely affect the pilot's ability to maneuver the airplane to avoid flight hazards. Excessive image latency or lag, for example, might have an adverse effect.

One commenter provided the following comments:

• It is not clear if this rules out the use of the EVS for taxi and/or takeoff.

• The words seem to indicate that the evaluation has already been completed and the special conditions authorize use during the approach.

• Other potential uses should be considered (that is, takeoff, taxi, seeing threatening cloud formations at night).

Special conditions paragraph 4. is meant to clarify the intended function of EVS, not to impose operational limitations. A requirement for airworthiness certification is that the system must be of a type and design to perform its intended function.

The FAA and the applicant agree that the intended functions listed in paragraphs 4.a. and 4.b., associated with approach operations, are the primary focus of the certification, and for which the FAA will certify the EVS. However, there is no intent to restrict use of the EVS to approach and landing operations only. The EVS may be used as a supplemental system for any phase of flight, including taxi and take-off, when it is shown to be safe.

A PoC flight test program was conducted to evaluate what the EVS was capable of, how it should be used, and what certification criteria would be needed. Demonstrations for showing compliance with the airworthiness certification requirements will be accomplished after issuance of the final special conditions.

One commenter states that it is unclear whether a proof of concept demonstration was conducted and if so, no results were revealed.

As stated earlier, a PoC demonstration has already been conducted. The PoC test report, itself, is proprietary to the applicant, so the FAA did not provide it to the public.

One commenter states that consideration should be given to the following areas in the proposed special conditions:

• Ensure acceptable characteristics when transitioning from EVS ON to OFF and vice versa, particularly the ability to reacquire outside visual references when EVS is selected OFF during an instrument approach.

• Evaluate the perception of actual colors as viewed through the HUD with the EVS ON.

• Address the effects of power transients or temporary interruptions.

• Address pilot fatigue or eye strain while using the EVS.

• Consider EVS dispatch requirements.

• Paragraph 2.d. should be expanded to state that the initial certification should include sufficient testing to cover the normal range of expected flight maneuvers for all of the phases of flight to be certified with the EVS active.

Another commenter states that it may be desirable to provide the option of a head down FLIR display when operations are conducted with a single HUD.

The FAA agrees, in part, with the issues raised by the first commenter. The FAA plans to evaluate these issues during the certification program, but does not see the need to revise the language of the special conditions. FAA responses to the issues are provided in the order presented by the commenter.

• Specific standards for acceptable EVS on/off transitions and color perception need not be stated. These factors can be evaluated in the context of special conditions paragraphs 1. and 2. (including sub-paragraphs).

• The HUD was already certified to have acceptable responses to power transients and interruptions. The FAA does not consider this EVS image, itself, critical. Based on special conditions paragraph 2.f., with the EVS modification, the HUD must continue to meet the requirements of its original approval.

• Per special conditions paragraph 2.f., the HUD with the EVS modification must continue to meet the requirements of its original approval, including the eye strain and fatigue criteria of the HUD issue paper.

• Dispatch requirements are determined by the FAA Aircraft Evaluation Group and will not be specified in the special conditions.

• Software requirements are addressed, separately, in a means of compliance issue paper and will not be addressed in the special conditions.

In response to the second commenter, the FAA considers that the desirability of an option to display the EVS image head down is a matter for the customer to decide, but is not a safety issue that would justify a mandatory standard.

The commenter states that the EVS should be recognized as a system with an extremely long and broad base of experience. Many of the issues raised in the notice are old concerns resolved by the military in great detail, and at great cost, including:

• Issues of visual acuity and cognizant processing.

• Perception of the 3rd dimension is accomplished through a combination of relative intensity (brightness), apparent movement, and size growth with decreasing distance to items of interest.

• In spite of technical limitations of older military systems, they were whole-heartedly embraced as beneficial, even a poor image is better than no image. The present technology is better since it has a larger, more sensitive detector array.

The FAA did not discount the military experience when proposing these special conditions. The “old concerns” may have been resolved by the military for the sake of weapon system design and operational use. The notice (preamble and special conditions) raised the issues that distinguish the EVS image from natural pilot vision because there are novel or unusual design features which the existing rule, § 25.773, does not adequately address, and to provide safety standards that can be used to certify the EVS to the level of safety required for civil transport category airplanes.

While acknowledging that there are some differences between the EVS image and natural vision, special conditions provide a way to certify EVS and maintain the level of safety, based on the premise that the combination of what the pilot can see in the image and what can be seen naturally, while the image is displayed, must be as safe and effective as the view without the image (in the same conditions).

The special conditions were proposed because of the need for appropriate safety standards for such systems that perform required functions previously done only by natural pilot vision. The FAA does not suggest, and has no reason to believe, that that the Gulfstream EVS is unsafe and cannot comply with the requirements of the special conditions.

The special conditions acknowledge enhanced situational awareness as an intended function of EVS, where its safety benefits might be best realized. Use of the EVS may also be beneficial during Category I approaches, when the ceiling and visibility are as prescribed in the standard instrument approach procedure. However, its safety benefit, when used for a Category I approach in less than prescribed flight visibility, has yet to be evaluated.

The FAA accepts that the EVS image can provide some depth cues; however, unlike EVS, the natural view provides actual stereoscopic and accommodation (focus) cues, in addition to depth perception cues which may be found in the EVS image. The airworthiness standard, § 25.773, and the operational rules, including § 91.175, were written with natural vision in mind.

The visual acuity (resolution) of the raster EVS image display also differs from natural pilot vision. This does not mean that EVS is unacceptable, only that it does not match natural vision, and that safety standards are needed for the image resolution to be satisfactory for its intended function, and that it does not unacceptably interfere with the pilot's natural vision.

One commenter states that the notice asserts that the existing regulations do not permit the use of a “sensor based” system for independent verification that the primary guidance is accurate. Another commenter states that there is no reference in the notice to the PoC test results that found the EVS suitable for acting as an independent integrity monitor for ILS approaches.

The FAA did not say in the notice that sensor based systems cannot be used for independent verification of the primary guidance. Paragraph 4. of the special conditions does not explicitly list the function of “integrity monitor” for the guidance, but this function is covered within the dual intended function of “presenting an image that would aid the pilot during the approach” and “that the pilot can use to detect and identify the visual references” (§ 91.175(c)(3)).

The EVS cannot be an independent monitor in the same sense as the term is normally used. Normally, use of this term refers to automatic detection and annunciation of system performance deviations and failure conditions. The pilot may be able to use the EVS image to identify certain visual references that serve as airplane position cues. The EVS sensor performance (i.e., what can be seen and at what distance) in the actual atmospheric conditions will affect the usefulness of the image for the purpose of verifying airplane position.

One commenter states that the special conditions delve into the technical “nitty-gritty” of infrared and display performance with little understanding of the technology and underlying physics. The commenter further states that:

• Infrared sensors are not limited to the mere sensing of “heat.” The EVS sensor has been tailored to detect electromagnetic radiation from the near-IR out to the long-wavelength. This is technically interesting but not relevant to the issue at hand.

• Most important is what the system provides, not the theoretical basis for infrared operation. With EVS, the pilot sees the same visual cues, in the same way, as presented on the HUD in a form that promotes outside/far-field vision and facilitates a transition from the IR image to the real scene.

The FAA agrees, in part, with the commenter. While the infrared energy detected by these sensors is primarily due to “thermal” contrast in the scene, it is also true that reflected and emitted infrared energy might be detected. Because of their spectral response, the infrared sensors detect contrast in the scene differently from natural pilot vision. A scene that shows significant contrast in the infrared wavelengths may have less contrast in the visual wavelengths, and vice versa.

The FAA agrees that the pilot may see many of the same visual cues with the EVS that might be seen naturally, but they are not seen in exactly the same way. As stated earlier, the cause and degree of scene contrast can vary between the infrared image and the natural view. However, the FAA acknowledges that the size and spatial relationships of certain visual references, particularly lighted objects such as those listed in § 91.175(c)(3), may be similar in the image and in the natural view and therefore may be identifiable to the pilot.

This is not to say that the EVS infrared imagery is unacceptable, only that it is not the same as natural vision, in a variety of ways. Natural vision was originally assumed when §§ 25.773 and 91.175 were issued, which, as discussed earlier, is one basis for the special conditions. So far, the FAA has not certified the use of any electronic imagery displayed in the windshield's field of view or imagery generated from a different part of the electromagnetic spectrum.

One commenter states that the EVS could be used at many runway ends closed for critical take-off and landing operations due to limited visibility. The EVS could restore the pilot's vision and increase airport capacity.

The full potential for operational benefits of the EVS will be demonstrated by the accumulation of service experience, and will depend on the FAA Flight Standards' determination of what operational uses will be authorized.

That EVS may provide significant operational benefits is not a factor when determining the need for safety standards or special conditions. The special conditions, alone, will not restrict the use of EVS for operationally beneficial purposes.

One commenter, representing the interests of airlines and manufacturers, requests that the comment period be extended for 30 days. The commenter states that airlines and manufacturers must be able to understand the implications and future impact of the proposed special conditions and need the additional time to provide responsive and constructive comments.

The FAA has decided not to extend the public comment period. Eighteen commenters, including this commenter, were able to provide extensive comments to the proposed special conditions during the allotted time. These special conditions are specific to the Gulfstream Model G-V EVS project, and any extension to the public comment period would adversely delay certification. There will be additional opportunities to comment on other special conditions and rulemaking related to future EVS certification projects as they arise.

One commenter expresses concern about the effect this special condition action will have on the industry-wide joint effort to improve the certification process through the use of strong and trustworthy partnerships, and requests that the FAA conduct a public hearing into the process of handling such further industry developments.

A second commenter requests that the FAA hold a public hearing to discuss the special conditions and the rationale for broader application to products developed as part of the Safer Skies program.

The FAA does not agree. The process of holding a public meeting and dealing with the result of such a meeting would unduly delay completion of this rulemaking and could adversely affect the applicant's certification schedule.

The FAA does not believe that such a meeting would materially serve the purposes of this rulemaking. A significant amount of substantive public comments have already been submitted that sufficiently characterize objections and concerns with the special conditions.

As discussed above, these special conditions are applicable to Gulfstream Model G-V airplanes modified by Gulfstream Aerospace. Should Gulfstream Aerospace apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Gulfstream Model G-V airplanes modified by Gulfstream Aerospace. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

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 EMBRAER Model EMB-135 and EMB'145 series airplanes was published in the Federal Register on November 13, 2000 (65 FR 67663). That action proposed to require replacement of certain brake control units (BCU) with new units.

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 states that EMBRAER Service Bulletin 145-32-0060, dated May 5, 2000, should be included in the final rule as an additional source of service information for previous accomplishment of the specified actions. EMBRAER Service Bulletin 145-32-0060, Change No. 01, dated June 6, 2000, was listed as the source of service information for accomplishment of the actions specified in the proposed rule. The commenter states that the difference between the original issue and Change No. 01 of the service bulletin is administrative in nature.

The FAA agrees with the commenter that the original issue is essentially the same as Change No. 01 of the service bulletin. We have added a new Note 2 to the final rule which clarifies that previous accomplishment of the actions per the original issue of the service bulletin meets the requirements of this final 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 with the change described previously. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 165 Model EMB-135 and EMB-145 series airplanes of U.S. registry will be affected by this AD. It will take approximately 5 work hours per airplane (2.5 work hours per BCU) to accomplish the required actions, at an average labor rate of $60 per work hour. Required parts will be provided by a vendor at no charge to the operator. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $49,500, or $300 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 airworthiness directive (AD) that is applicable to certain CASA Model CN-235 series airplanes was published in the Federal Register on April 10, 2001 (66 FR 18573). That action proposed to require installation of fuselage skin reinforcements in the right and left zones of the fuselage between stations 11232 and 11740 and stringers P7 and P9.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that one Model CN-235 series airplane of U.S. registry will be affected by this AD, that it will take approximately 45 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $130 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $2,830.

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.

This action will establish a Class E enroute domestic airspace area with a base altitude of 1,200 feet AGL west of Kingman, AZ. A review of the airspace associated with the development of Las Vegas McCarran International Airport arrival routes revealed large areas of uncontrolled (Class G) airspace. Because this airspace is Class G (uncontrolled) below 14,500 feet mean seal level (MSL), the Los Angeles Air Route Traffic Control Center (ARTCC) cannot use nor provide air traffic services within this airspace for arrivals into Las Vegas McCarran International Airport. En route domestic airspace areas are intended to create controlled airspace in those areas where there is a requirement to provide Instrument Flight Rules (IFR) en route air traffic control services but the Federal airway segment is inadequate. The intended effect of this action is to establish adequate Class E controlled airspace for IFR aircraft arriving Las Vegas McCarran International Airport. Class E enroute domestic airspace areas are published in Paragraph 6006 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 would be published in this Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and conforming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-AWP-17.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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 Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This action will establish a Class E enroute domestic airspace area with a base altitude of 1,200 feet AGL southeast of Las Vegas, NV. A review of the airspace associated with the development of Las Vegas McCarran International Airport arrival routes revealed large areas of uncontrolled (Glass G) airspace. Because this airspace is Class G (uncontrolled) below 14,500 feet mean sea level (MSL), the Los Angeles Air Route Traffic Control Center (ARTCC) cannot use nor provide air traffic services within this airspace for arrivals into Las Vegas McCarran International Airport. En route domestic airspace areas are intended to create controlled airspace in those areas where there is a requirement to provide Instrument Flight Rules (IFR) en route air traffic control services but the Federal airway segment is inadequate. The intended effect of this action is to establish adequate Class E controlled airspace for IFR aircraft arriving Las Vegas McCarran International Airport.

Class E enroute domestic airspace areas are published in Paragraph 6006 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 would be published subsequently in this Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-AWP-16.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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 Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; 92) 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.

The FAA has modified the NDB RWY 18 SIAP serving Clay County Regional Airport, Mosby, MO. The amendment to Class E airspace at Mosby, MO, will provide additional controlled airspace upward from 700 feet AGL in order to contain the modified SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 01-ACE-6.” The postcard will be date stamped and returned to the commenter.

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

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

On April 4, 2001 a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Westmoreland Hospital Heliport, Greensburg, PA was published in the Federal Register (66 FR 17827-17828).

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 4, 2001. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace 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 amended in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Westmoreland Hospital Heliport, Greensburg, PA.

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. Therefore, this regulation: (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 significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On April 30, 2001, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class D airspace and establishing Class E4 airspace at Homestead, FL (66 FR 21296). Class D airspace designations for airspace areas extending upward from the surface of the earth and Class E airspace designations for airspace areas designated as an extension to a Class D airspace area are published in Paragraphs 5000 and 6004 respectively, 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 D and Class E airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class D airspace and establishes Class E4 airspace at Homestead, FL.

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 May 4, 2001, the FAA proposed to amend Part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace at LaFayette, GA, (66 FR 22490). This action provides adequate Class E airspace for IFR operations at Barwick LaFayette Airport. Designations for Class E airspace extending upward from 700 feet or more above the surface of the earth are published in FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR part 71.1. The Class E designation listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal was received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E airspace at LaFayette, GA. RNAV RWY 02 and RWY 20 SIAP have been developed for Barwick LaFayette Airport. Controlled airspace extending upward from 700 feet AGL is needed to accommodate the SIAPs and for IFR operations at Barwick LaFayette Airport. The operating status of the airport will change from VFR to include IFR operations concurrent with the publication of the SIAP.

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 April 4, 2001 a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an GPS, Helicopter Point in Space Approach to the Latrobe Hospital Heliport, Lloydsville, PA was published in the Federal Register (66 FR 17826-17827).

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 4, 2001. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace 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 amended in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Latrobe Hospital Heliport, Lloydsville, PA.

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. Therefore, this regulation: (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 significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This notice only relates to fees for the Commission's review of the rule enforcement programs at the registered futures associations and contract markets regulated by the Commission. Fees for designation will be set forth in rules implementing the Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. No. 106-554, 114 Stat. 2763, and the Commission's new regulatory framework. The Commission has proposed rules to implement the Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. No. 106-554, 114 Stat. 2763, and the Commission's new regulatory framework. The proposed rules (66 FR 14262, Mar. 9, 2001) establish three new market categories, including exempt markets and two categories of markets subject to Commission regulatory oversight—designated contract markets and registered derivatives transaction execution facilities. The Commission proposed also to charge a fee for product review where approval has been requested by a designated contract market or registered derivatives transaction execution facility. See 66 FR 14262, 14286 (Mar. 9, 2001). No fee was proposed for the initial designation of a contract market or registration of a derivatives transaction execution facility. The new rules will amend the Schedule of Fees found in appendix B to part 5 of the Commission's rules.

Fees for the Commission's review of the rule enforcement programs at the registered futures associations and contract markets regulated by the Commission:

The Commission recalculates the fees charged each year with the intention of recovering the costs of operating this Commission program. 1 All costs are accounted for by the Commission's Management Accounting Structure Codes (MASC) system, which records each employee's time for each pay period. The fees are set each year based on direct program costs, plus an overhead factor.

The fees charged by the Commission to the SROs are designed to recover program costs, including direct labor costs and overhead. The overhead rate is calculated by dividing total Commission-wide direct program labor costs into the total amount of the Commission-wide overhead pool. For this purpose, direct program labor costs are the salary costs of personnel working in all Commission programs. Overhead costs consist generally of the following Commission-wide costs: Indirect personnel costs (leave and benefits), rent, communications, contract services, utilities, equipment, and supplies. This formula has resulted in the following overhead rates for the most recent three years (rounded to the nearest whole percent): 104 percent for fiscal year 1998, 105 percent for fiscal year 1999, and 105 percent for fiscal year 2000. These overhead rates are applied to the direct labor costs to calculate the costs of oversight of SRO rule enforcement programs.

Under the formula adopted in 1993 (58 FR 42643, Aug. 11, 1993) which appears at 17 CFR part 1 appendix B, the Commission calculates the fee to recover the costs of its review of rule enforcement programs, based on a three-year average of the actual cost of performing reviews at each SRO. The cost of operation of the Commission's program of SRO oversight varies from SRO to SRO, according to the size and complexity of each SRO's program. The three-year averaging is intended to smooth out year-to-year variations in cost. Timing of reviews may affect costs—a review may span two fiscal years and reviews are not conducted at each SRO each year. Adjustments to actual costs may be made to relieve the burden on an SRO with a disproportionately large share of program costs.

The Commission's formula provides for a reduction in the assessed fee if an SRO has a smaller percentage of United States industry contract volume than its percentage of overall Commission oversight program costs. This adjustment reduces the costs so that as a percentage of total Commission SRO oversight program costs, they are in line with the pro rata percentage for that SRO of United States industry-wide contract volume.

The calculation made is as follows: The fee required to be paid to the Commission by each contract market is equal to the lesser of actual costs based on the three-year historical average of costs for that contract market or one-half of average costs incurred by the Commission for each contract market for the most recent three years, plus a pro rata share (based on average trading volume for the most recent three years) of the aggregate of average annual costs of all contract markets for the most recent three years. The formula for calculating the second factor is: 0.5a + 0.5vt=current fee. In this formula, “a” equals the average annual costs, “v” equals the percentage of total volume across exchanges over the last three years, and “t” equals the average annual cost for all exchanges. NFA, the only registered futures association regulated by the Commission, has no contracts traded; hence its fee is based simply on costs for the most recent three fiscal years.

This table summarizes the data used in the calculations and the resulting fee for each entity:

An example of how the fee is calculated for one exchange, the Minneapolis Grain Exchange, is set forth here:

a. Actual three-year average costs equal $5,102.

b. The alternative computation is:

As noted above, the alternative calculation based on contracts traded, is not applicable to the NFA because it is not a contract market and has no contracts traded. The Commission's average annual cost for conducting oversight review of the NFA rule enforcement program during fiscal years 1998 through 2000 was $213,421 (one-third of $640,263). The fee to be paid by the NFA for the current fiscal year is $213,421.

The Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , requires agencies to consider the impact of rules on small business. The fees implemented in this release affect contract markets (also referred to as exchanges) and registered futures associations. The Commission has previously determined that contract markets and registered futures associations are not “small entities” for purposes of the Regulatory Flexibility Act. Accordingly, the Acting Chairman on behalf of the Commission, certifies pursuant to 5 U.S.C. 605(b), that the fees implemented here will not have a significant economic impact on a substantial number of small entities.

Pfizer, Inc., 235 East 42d St., New York, NY 10017-5755, has informed FDA that it has transferred ownership of, and all rights and interests in, NADA 8-804 for Terramycin® (oxytetracycline) Type A medicated articles, NADA 38-439 for Terramycin® (oxytetracycline) for fish, and NADA 95-143 for OXTC® (oxytetracycline) Type A medicated articles to Phibro Animal Health, Inc., One Parker Plaza, Fort Lee, NJ 07024. Accordingly, the agency is amending the regulations in 21 CFR 558.450 to reflect the transfer of ownership.

In addition, Phibro Animal Health, Inc., has not been previously listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c)(1) and (c)(2) is being amended to add entries for the firm.

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

1. The authority citation for 21 CFR part 510 continues to read as follows:

2. Section 510.600 is amended in the table in paragraph (c)(1) by alphabetically adding an entry for “Phibro Animal Health, Inc.” and in the table in paragraph (c)(2) by numerically adding an entry for “066104” to read as follows:

The VTVPA is actually two separate laws, the “Trafficking Victims Protection Act of 2000” (TVPA) and the “Violence Against Women Act of 2000” (VAWA2).

Section 107 of Division A of the TVPA created a new nonimmigrant category under INA 101(a)(15)(T) for aliens who the Attorney General has determined are victims of a “severe form of trafficking in persons.” Section 103 of the TVPA defines a “severe form of trafficking in persons” as either:

To qualify for the “T” category, the person must

(1) Be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a U.S. port of entry because of such trafficking;

(2) Have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking, or be under the age of 15; and

(3) Be likely to suffer extreme hardship involving unusual and severe harm upon removal.

The Attorney General may, in order to avoid extreme hardship, permit the spouse, children and parents of an alien under age 21 and the spouse and children of an alien over age 21 to accompany or follow to join the principal alien.

Section 1513 of Division B of the VAWA2 created a new category under INA 101(a)(15)(U) for victims of physical or mental abuse. To qualify under the U category the alien must file a petition with the Attorney General and establish therein:

(1) The alien has suffered substantial physical or mental abuse as a result of having been a victim of any one of an extensive list of 26 criminal activities, including rape, torture, domestic abuse, enslavement prostitution, etc.;

(2) As certified by a law enforcement or immigration official, the alien (or if the alien is a child under age 16 the child's parent, guardian or friend) possesses information about the criminal activity involved;

(3) The alien has been, is being or is likely to be helpful in the investigation and prosecution of the criminal activity by Federal, state or local law enforcement authorities; and,

(4) The criminal activity violated the laws of the United States or occurred in the United States.

If the Attorney General determines that extreme hardship exists and a law enforcement official certifies that an investigation or prosecution would be harmed without that person's assistance, the spouse, child or parents of the principal alien under age 16 may accompany or follow to join the principal alien.

The U category is limited to 10,000 principal aliens per fiscal year.

The LIFE ACT creates new nonimmigrant categories under INA 101(a)(15)(V) and adds a new category under INA 101(a)(15)(K).

An alien may be classified as a V nonimmigrant if the alien is:

(1) The spouse or child of a lawful permanent resident;

(2) Is the beneficiary of an approved petition filed under INA 204 prior to December 21, 2000; and

(3) Has been waiting for three or more years after filing the petition for the issuance of an immigrant visa.

An alien may be granted K status if the alien:

(1) Is the spouse of a U.S. citizen petitioner or the child of such spouse; and

(2) Is waiting for the approval of a petition or the availability of an immigrant visa.

Pub. L. 106-536 created a new immigrant category (BC) under INA 101(a)(27)(M) for certain United States international broadcasting employees. To qualify as a special immigrant broadcaster, the alien must be:

(1) Seeking to enter the United States to work as a broadcaster in the United States for the International Broadcasting Bureau of the Broadcasting Board of Governors, or

(2) Seeking to enter the United States to work for a grantee of the Broadcasting Board of Governors, or

(3) The accompanying spouse and child of the principal alien. The law limits the number of aliens granted visas in this category to 100 in any fiscal year.

Section 132 of Pub. L. 104-296 established a class of immigrants (AA) to be issued immigrant visas in fiscal years 1992, 1993 and 1994. Section 217 of Pub. L. 104-316 extended this program through September 30, 1995. The Department is removing the diversity transition natives (AA-1, AA-2, and AA-3) since this category of immigrants no longer exists.

The rule amends the nonimmigrant visa classification table at 22 CFR 41.12 by adding new classifications: T1 and T2; U1 and U2, V1, V2 and V3, and K3 and K4.

The rule amends the immigrant visa classification table at 22 CFR 42.11 by adding three new classifications: BC1, BC2 and BC3. The rule removes the classification symbols AA1, AA2 and AA3. The rule also corrects the classification symbols for certain retired civilian employees of NATO and the spouses and unmarried sons and daughters and certain retired and deceased NATO employees. These aliens were erroneously classified as SK special immigrants and should have been classified as SN1, SN2, SN3 and SN4.

The Department's implementation of this regulation as a final rule is based upon the

“good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The Department decided that since the new nonimmigrant and special immigrant categories became effective upon enactment of the respective laws and since there is a substantial immediate benefit to many aliens, citizens and lawful permanent residents, there is not enough time nor sufficient reason to delay its implementation by issuing a proposed rule with request for comments.

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 it is being 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 the Office 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.

On February 18, 1982, the Secretary of the Interior approved the Maryland program. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the February 18, 1982, Federal Register (47 FR 7214). You can find subsequent actions concerning the conditions of approval and program amendments at 30 CFR 920.15 and 920.16.

By letter dated September 14, 1999 (Administrative Record No. 577-04), Maryland provided an informal amendment to OSM regarding a definition of previously mined area, termination of jurisdiction, permitting requirements, bond release requirements and performance standards for inspections. Maryland submitted the informal amendment in response to requests made by OSM as required under 30 CFR 732.17(d) in letters dated July 8, 1997, and August 11, 1999 (Administrative Record Nos. 577-01 and 577-03, respectively). OSM completed its review of the informal amendment and submitted comments to Maryland in a letter dated March 20, 2000 (Administrative Record No. 577-05). By letter dated April 11, 2000 (Administrative Record No. MD-577-06), Maryland submitted its response to OSM's comments in the form of a proposed amendment to the Code of Maryland Regulations (COMAR). The proposed amendments were announced in the April 28, 2000, Federal Register (65 FR 24897). The public comment period closed on May 30, 2000. However, OSM's review determined that the proposed revisions to COMAR 26.20.31.02H the inspection frequency on reclaimed bond forfeiture sites were inconsistent with 30 CFR 840.11 and 700.11(d). As a result, a letter requesting clarification was sent to Maryland dated August 17, 2000 (Administrative Record No. MD-577-12). Maryland responded in its letter dated August 31, 2000 (Administrative Record No. MD 577-13) with a new revision to COMAR 26.20.31.02H regarding the inspection frequency on reclaimed bond forfeiture sites. Therefore, OSM reopened the public comment period regarding the proposed amendments to Maryland's regulatory program. The proposed rulemaking was published in the October 4, 2000, Federal Register (65 FR 59150). The public comment period closed on October 19, 2000. No one requested an opportunity to speak at a public hearing, so no hearing was held. OSM's review of this submission determined that the proposed revision to COMAR 26.20.31.02 J(3) was not as effective as the Federal counterpart at 30 CFR 840.11(h)(1)(iii). To be as effective as the corresponding Federal regulation involved only the addition of a few words to make the proposed rule identical to the corresponding Federal regulation. Maryland agreed to make the change, and by a fax dated February 20, 2001, submitted the revision to OSM. This change is explained later in this document.

Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the amendments to the Maryland permanent regulatory program.

Maryland is adding item (72-1) to the definitions as follows: “Previously Mined Area” means land affected by surface coal mining operations prior to August 3, 1977 that have not been reclaimed to the standards of this subtitle. The Director finds that the definition described above is substantively identical to and therefore no less effective than the definition of “previously mined area” found at 30 CFR 701.5.

Maryland is adding new paragraphs C. and D. as follows:

C. The Bureau may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation or increment thereof, when the Bureau determines, in writing, that under the regulatory program, all requirements imposed under the applicable regulatory program have been successfully completed or, where a performance bond was required, the bureau has made a final decision in accordance with this subtitle to fully release the performance bond.

D. Following a termination under section C. of this regulation, the Bureau shall reassert jurisdiction under the regulatory program over a site if it is demonstrated that the bond release or written determination referenced in section C. of this regulation was based upon fraud, collusion, or misrepresentation of a material fact.

The Director finds that the additions described above are substantively identical to and therefore no less effective than the Federal Regulations at 30 CFR 700.11(d)(1)(ii) and (2).

Maryland is modifying paragraph M. by inserting the phrase “Except as provided in COMAR 26.20.26.01B,” before the existing text. This section will now read as “Except as provided in COMAR 26.20.26.01B, maps, plans and cross sections required under Sections K and L of this regulation shall be prepared by, or under the direction of and certified by, a qualified registered professional engineer or professional geologist.” The federal rule at 30 CFR 780.14(c) requires cross sections, maps and plans under 780.14(b)(4), (b)(5), (b)(6), (b)(10) and (b)(11) to be prepared by or under the direction of and certified by a qualified registered professional engineer or a professional geologist. Section 780.14(c) also provides exceptions to these requirements, one of which is for fill and appurtenant structures. Likewise, Maryland's proposed language creates an exception to the requirements of 30 CFR 780.14(c) for fill and appurtenant structures. Accordingly, since Maryland's language creates an exception, which is allowed under 30 CFR 780.14(c), the Director finds that the change described above is no less effective than 30 CFR 780.14(c).

Maryland is modifying paragraph I. by adding new subsection (5) as follows:

The aggregate total prime farmland acreage shall not be decreased from that which existed prior to mining. Water bodies, if any, to be constructed during mining and reclamation operations must be located within the post-reclamation non-prime farmland portions of the permit area. The creation of any such water bodies must be approved by the Bureau and the consent of all affected property owners within the permit area must be obtained.

The Director finds that the changes described above are substantively identical to and therefore no less effective than the Federal Regulations at 30 CFR 785.17(e)(5).

Maryland is modifying paragraph A., Application for Release, by adding new subsection (5) as follows:

The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of Environmental Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, and the approved reclamation plan. Such certification shall be submitted for each application or phase of bond release.

The Director finds that the changes described above are substantively identical to and therefore no less effective than the Federal Regulations at 30 CFR 800.40(a)(3).

Maryland is deleting the existing paragraph H. in its entirety and substituting the following new paragraph H:

H. An abandoned site means a surface coal mining and reclamation operation for which the Bureau has found in writing that:

(1) All surface and underground coal mining and reclamation activities at the site have ceased;

(2) At least one notice of violation has been issued and the notice could not be served in accordance with Regulation .08 of this chapter or the notice was served and has progressed to a failure-to-abate cessation order;

(3) Action is being taken to ensure that the permittee and the operator, and owners and controllers of the permittee and the operator, will be precluded from receiving future permits while the violations continue at the site;

(4) Action is being taken in accordance with the requirements of the Regulatory Program to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it is concluded that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(5) Where the site is or was permitted and bonded and the permit has either expired or been revoked, the forfeiture of any available performance bond is being diligently pursued or has been forfeited.

Maryland is also adding new paragraph I .as follows:

I. Instead of the inspection frequency required in Sections A. and B. of this regulation, the Bureau shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site. However, in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

Maryland is also adding new paragraph J. as follows:

J. The Bureau shall conduct a complete inspection of the abandoned site and provide the public notice required under Section K. of this regulation in order to select an alternative inspection frequency authorized under Section I. of this regulation. Following the inspection and public notice the Bureau shall prepare and maintain for public review a written finding that justifies the selected alternative inspection frequency. The written finding shall justify the new inspection frequency by addressing in detail all of the following criteria:

(1) How the site meets each of the criteria under the definition of abandoned site under Section H of this regulation and thereby qualifies for a reduction in inspection frequency;

(2) Whether there exists on the site, and to what extent, impoundments, earthen structures, or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health and safety of the public or significant environmental harms to land, air, or water resources;

(3) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(4) The degree to which erosion and sediment control is present and functioning;

(5) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools, and other public or commercial buildings and facilities;

(6) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

(7) Based on a review of the complete and the partial inspection report record for the site during at least the last two consecutive years, the rate at which adverse environmental or public health and safety conditions can be expected to progressively deteriorate.

Maryland is also adding new paragraph K. as follows:

K. Public Notice:

(1) The Bureau shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned site providing the public with a 30-day period in which to submit written comments concerning the alternative inspection frequency.

(2) The public notice shall contain the:

(a) Permittee's name and permit number;

(b) Precise location of the land affected.

(c) Inspection frequency proposed.

(d) General reasons for reducing the inspection frequency;

(e) Bond status of the permit;

(f) Telephone number and address of the Bureau where written comments on the reduced inspection frequency may be submitted; and

(g) Closing date of the comment period.

On April 19, 2000, we asked for comments from various Federal agencies who may have an interest in the Maryland amendment (Administrative Record Number MD-577-06). We solicited comments in accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations. Both the Mine Safety and Health Administration and the Natural Resources Conservation Service responded that they had no comments in letters dated April 27, 2000 and May 8, 2000, respectively. (Administrative Records Numbers MD-577-09 and MD-577-10).

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). The Director has determined that this amendment contains no such provisions and that EPA concurrence is therefore unnecessary. OSM did, however, request comments from EPA by letter dated April 19, 2000, and EPA responded in its letter dated May 24, 2000 (Administrative Record Number MD-577-11) that the amendment was in compliance with the Clean Water Act.

No comments were received in response to our request for public comments.

Based on the findings above we are approving the amendments to the Maryland program. This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA.

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

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

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

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

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

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

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

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

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

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

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

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

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

In 1998, FinCEN granted a conditional exception (the “CIF Exception”) to the strict operation of 31 CFR 103.33(g) (the “Travel Rule”). See FinCEN Issuance 98-1, 63 FR 3640 (January 26, 1998). The Travel Rule requires a financial institution to include certain information in transmittal orders relating to transmittals of funds of $3,000 or more. The CIF Exception addressed computer programming problems in the banking and securities industries by relaxing the Travel Rule's requirement that a customer's true name and street address be included in a funds transmittal order, so long as alternate steps, described in FinCEN Issuance 98-1 and designed to prevent avoidance of the Travel Rule, were satisfied. By its terms, the CIF Exception to the Travel Rule was to expire on May 31, 1999; however, FinCEN extended the CIF Exception so that it would expire instead on May 31, 2001. See FinCEN Issuance 99-1, 64 FR 41041 (July 29, 1999).

The basis for the CIF Exception and its extension remain valid—namely, that relaxing the strict operation of the Travel Rule is appropriate to meet the continuing programming problems in the banking and securities industry, so long as complete information about funds transfers can be made available efficiently to law enforcement officials. FinCEN specifically invites comments as to whether the terms of the CIF Exception should be permanently incorporated into the Travel Rule.

By virtue of the authority contained in 31 CFR 103.55(a) and (b), which has been delegated to the Director of FinCEN, the effective period of the CIF Exception, as such Exception is set forth (as part of FinCEN Issuance 98-1, 63 FR 3640 (January 26, 1998)) under the heading “Grant of Exceptions” (63 FR 3641) is extended so that the CIF Exception will expire, on May 31, 2003 (if not revoked or modified with respect to such expiration date prior to that time), for transmittals of funds initiated after that date.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM was unnecessary and contrary to the public interest. These repairs will have a minimal impact on marine traffic as the bridge will continue to provide single leaf openings and double leaf openings with advance notification.

For the same reason, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The PGA Boulevard Bridge across the Atlantic Intracoastal Waterway mile 1012.6 at West Palm Beach, Palm Beach County, Florida, has a vertical clearance of 24.9 feet in the closed position and a horizontal clearance of 90 feet between fender. On March 23, 2001, the Florida Department of Transportation, requested a modification from the current operating regulation in 33 CFR 117.261(s) which requires the drawbridge to open on signal; except that from 7 a.m. to 9 a.m. and 4 p.m. to 7 p.m., Monday through Friday except Federal holidays, the draw need open on the quarter-hour and three-quarter hour. On Saturday, Sundays and Federal holidays from 8 a.m. to 6 p.m. the draw need open only on the hour, 20 minutes after the hour, and 40 minutes after the hour. On weekdays except Federal holidays from November 1 thorough April 30 from 9 a.m. to 4 p.m., the draw need open only on the hour, 20 minutes after the hour, and 40 minutes after the hour.

Under this temporary rule, from May 28, 2001 until July 16, 2001 and from August 11, 2001 until September 3, 2001, the PGA Boulevard Bridge shall open a single leaf on signal; except that from 7 a.m. to 7 p.m., Monday through Friday except Federal holidays, the draw need open only a single leaf on the quarter-hour and three-quarter hour. A double leaf opening will be available if at least 8 hours notice is provided to the bridge tender. On Saturdays, Sundays and Federal holidays from 8 a.m. to 6 p.m., both draws need open only on the hour, 20 minutes after the hour, and 40 minutes after the hour.

Due to the removal of gears, this bridge will be able to provide single leaf openings only from July 16, 2001 to August 10, 2001. This rule will be effective until September 3, 2001.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The changes to the bridge's operating schedules will have a minimal affect on navigation. Further, the temporary regulations still allow for scheduled single leaf bridge openings.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as the regulations allow single leaf opening on a regular basis and double leaf opening with advance notice.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-221), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

The Coast Guard has considered the environmental impact of this action and has determined under figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1C, that this rule is categorically excluded from further environmental documentation.

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

On March 28, 2001, the Coast Guard published a notice of proposed rulemaking (NPRM) concerning the drawbridge regulation in the Federal Register (66 FR 16895). We received no comments concerning the proposed rule. No public hearing was requested and none was held.

The owner of the U.S. 23 bridge, Michigan Department of Transportation (MDOT), requested the Coast Guard approve a modified schedule for the winter operations of the bridge. The current regulation contained in 33 CFR 117.627 requires the bridge to open if at least 24 hours notice is provided between December 15 and March 15 each year. Records submitted by MDOT showed no requested bridge openings between March 15 and April 1 in 1998, 1999, and 2000. We determined that it would be reasonable to revise the date in spring that the bridge is required to be manned from March 15 to March 31. However, the 24-hour advance notice requirement was determined to be inconsistent with standard times in the Great Lakes and would not serve the reasonable needs of known navigation. Therefore, the revised schedule was developed to reflect the established times of need for vessels and provide an advance notice requirement that is consistent with seamanship practices on the Great Lakes. The revised schedule will require vessels provide at least 12-hours advance notice prior to intended time of passing between December 15 and March 31. The current regulation requires the bridge to open as soon as possible at all times for commercial vessels and vessels used for public safety. There is no revision to that requirement in this rule. This schedule is believed to provide a reasonable balance between the needs of the owner of the bridge to eliminate costs for tender service during periods of no vessel activity, and all known navigation that may require openings of the drawbridge in early spring each year.

The Coast Guard received no comments to the notice of proposed rulemaking. No changes will be made to this final rule.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This determination is based on the relatively minor adjustment to the operating schedule near the end of the winter navigation season, the only documented vessel that would require openings has been identified and accommodated, and the bridge would still open for vessels once the advance notice is provided.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard must consider whether this rule will have a significant impact on a substantial number of small entities. “Small entities” may include small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 people.

The Coast Guard certifies under 5 U.S.C 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The 12-hour advance notice requirement during winter months is a standard practice on the Great Lakes and still provides for bridge openings with advance notice from vessel operators. No identified entities would be unable to pass the bridge, as needed.

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

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132, and determined that this rule does not have federalism implications under that Order.

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. This rule changes a drawbridge regulation which has been found not to have a significant effect on the environment. A “Categorical Exclusion Determination” is not required.

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.

The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, Part 100 and Title 36, Part 242 of the Code of Federal Regulations (CFR). Consistent with Subparts A, B, and C of these regulations, as revised January 8, 1999, (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual Subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2001 fishing seasons, harvest limits, and methods and means were published on February 13, 2001, (66 FR 10142). Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical closures and adjustments would apply to 36 CFR part 242 and 50 CFR part 100.

The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Fisheries (BOF), manages sport, commercial, personal use, and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.

These emergency closures and adjustments are necessary because of predictions of extremely weak returns of chinook and chum salmon in the Kuskokwim River drainage and of chinook and summer-run chum salmon in the Yukon River drainage. These emergency actions are authorized and in accordance with 50 CFR 100.19(d) and 36 CFR 242.19(d).

The Federal Subsistence Board, ADF&G, and subsistence users are concerned that not enough chinook and chum salmon will be returning to the Kuskokwim River and its tributaries in 2001 to meet spawning escapement objectives or subsistence needs. Adequate spawning escapement is necessary to assure sustaining the population. Last year, subsistence salmon harvests in the Kuskokwim River were among the lowest in the past 12 years. Returns of chinook and chum salmon have been extremely poor over the last three years. The expected low runs and poor spawning escapements in 2001 could jeopardize the viability of future returns. Federal and State Biologists anticipate that the 2001 salmon returns will be critically low, and subsistence needs in some areas may not be met.

The BOF met in January, 2001 to review the status of salmon returns on the Kuskokwim River and identified Kuskokwim River chinook and chum salmon as stocks of concern. The BOF then took action to establish a salmon rebuilding plan for the Kuskokwim River. In addition, ADF&G has indicated that no commercial fishing periods are being considered for June and July for the Kuskokwim River, that they intend to limit the sport fishery to one salmon per person per day, and that they may close the sport fishery for salmon in the entire Kuskokwim River drainage if the runs are as weak as expected. The ADF&G biologists and U.S. Fish & Wildlife Service personnel have been conducting public meetings, producing information posters, and publishing news articles to let the local users know about concerns regarding the expected low salmon returns and advise them regarding the restrictions and closures to protect spawning escapement.

On May 10, 2001, in public forum and after hearing testimony, the Federal Subsistence Board adopted an emergency action closing the chinook and chum salmon fishery on Federal waters in the Kuskokwim River drainage to all users except those Federally-qualified subsistence users. The closure is for 60 days (the maximum amount of time allowed under 50 CFR 100.19(d) and 36 CFR 242.19(d)) from June 1, 2001, to July 30, 2001. This is the period of the greatest chinook and chum salmon run strength in the river. The effect of that action is to close the sport take for chinook and chum salmon in the Kuskokwim River drainage within the boundaries of the Yukon Delta National Wildlife Refuge, within or adjacent to Denali National Park and Preserve, and within or adjacent to Lake Clark National Park and Preserve and to close subsistence harvest on those same waters by any residents living outside the Kuskokwim River drainage. Although commercial fisheries are currently closed and ADF&G has indicated that an opening in June or July is highly unlikely, this action would prevent any such opening from occurring on Federal waters. Additionally, any chinook or chum salmon taken incidentally in another fishery must be released immediately. In other words, if you catch a chinook or chum salmon while fishing for sheefish or pike, you must immediately release it. This regulatory action is necessary to assure the continued viability of the chinook and chum salmon runs and provide a subsistence priority during a period of limited harvest opportunity. Should the runs come in stronger than expected with spawning escapement and subsistence needs being met, the delegated field manager may remove this restriction.

Returns of chinook and summer chum salmon to the Yukon River are again expected to be at or below the record lows of 2000. Very low catches of chinook and chum salmon were reported by many subsistence fishermen in 2000. Chinook and summer chum salmon escapement monitoring projects in 2000 showed that the returns of these species were very weak throughout most of the Yukon River drainage. Federal and State Managers and most subsistence users in the region have strong concerns that not enough chinook or summer chum salmon will reach their spawning grounds in 2001. There are similar concerns that subsistence needs in some areas may not be met.

At their January 2001 meeting, the BOF identified the Yukon River chinook and chum salmon as stocks of concern and for the first time implemented a reduced subsistence fishing schedule due to conservation concerns. In addition, ADF&G has indicated that any commercial fishing periods are highly unlikely for the Yukon River and that they may close the sport fishery for chinook salmon if the runs are weak. The ADF&G biologists and U.S. Fish & Wildlife Service personnel have been conducting public meetings, producing information posters, and publishing news articles to let the local users know about concerns regarding the expected low salmon returns and advise them regarding the restrictions and closures to protect spawning escapement.

On May 10, 2001, in public forum and after hearing testimony, the Federal Subsistence Board adopted an emergency action closing the chinook and summer chum salmon fishery on all Federal waters in the Yukon River drainage for 60 days (the maximum amount of time allowed under 50 CFR 100.19(d) and 36 CFR 242.19(d)) from June 1, 2001, to July 30, 2001, to all users except those Federally-qualified. The effect of that action is to close the sport take for chinook and summer chum salmon on Federal waters in the Yukon River drainage and to close subsistence harvest on those same waters by any residents living outside the Yukon River drainage or the community of Stebbins. Although Yukon River commercial salmon fisheries are currently closed and ADF&G has indicated that an opening is highly unlikely, this action would prevent any such opening from occurring on Federal waters. Additionally, any chinook or summer chum salmon taken incidentally to another fishery must be released immediately. In other words, if you catch a chinook or chum salmon while fishing for sheefish or pike, you must immediately release it.

This action is necessary to assure the continued viability of the chinook and summer chum salmon runs and to provide a subsistence priority during a period of limited harvest opportunity. Should the runs come in stronger than expected with spawning escapement and subsistence needs being met, the delegated field manager may remove this restriction. Additionally, with no commercial harvest scheduled or expected for the 2001 season, the requirement found at 50 CFR 100.27(i)(3)(xxi) and 36 CFR 242.27(i)(3)(xxi) to remove the dorsal fin of subsistence-caught chinook salmon becomes an unnecessary burden upon the subsistence user. The Board therefore temporarily suspended this requirement during the same period as the closure.

The Board finds that additional public notice and comment requirements under the Administrative Procedures Act (APA) for these emergency closures are impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate conservation measures could seriously affect the continued viability of fish populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of these actions and pursuant to 5 U.S.C. 553(d) to make this rule effective June 1, 2001.

A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999, (64 FR 1276.)

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

The adjustment and emergency closures do not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995.

The adjustment and emergency closures have been exempted from OMB review under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as boat, fishing tackle, and gasoline dealers. The number of small entities affected is unknown; but, the effects will be seasonally and geographically-limited in nature and will likely not be significant under the definition in this Act . The Departments certify that the adjustment and emergency closures will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the adjustment and emergency closures have no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that the adjustment and emergency closures will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that the adjustment and emergency closures meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the adjustment and emergency closures do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over fish and wildlife resources on Federal lands. Cooperative salmon run assessment efforts with ADF&G will continue.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

William Knauer drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob Gerhard, Alaska Regional Office, National Park Service; Ida Hildebrand, Alaska Regional Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest Service, provided additional guidance.

On September 21, 2000 (65 FR 57127), EPA published a notice of proposed rulemaking (NPR) for Utah. The NPR proposed approval of a one-year extension of the attainment date for the Salt Lake County, Utah PM 10 nonattainment area and two one-year extensions of the attainment date for the Utah County, Utah PM 10 nonattainment area.

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

In response to requests from the Governor of Utah, we are granting a one-year attainment date extension for the Salt Lake County, Utah PM 10 nonattainment area and two one-year attainment date extensions for the Utah County, Utah PM 10 nonattainment area in order to address CAA requirements. The effect of these actions is to extend the attainment date for the Salt Lake County, Utah PM 10 nonattainment area from December 31, 1994 to December 31, 1995 and the attainment date for the Utah County, Utah PM 10 nonattainment area from December 31, 1994 to December 31, 1995 and from December 31, 1995 to December 31, 1996. Our action to extend the attainment date for Salt Lake County is based on monitored air quality data for the national ambient air quality standard (NAAQS) for PM 10 from the years 1992-94 and the action for Utah County is based on data from the years 1992-94 and 1993-1995. In addition, based on quality-assured data meeting the requirements of 40 CFR part 50, appendix K, we are determining that, as of December 31, 1995, Salt Lake County attained the PM 10 NAAQS, and that, as of December 31, 1996, Utah County attained the PM 10 NAAQS. With this final approval, consistent with CAA section 188, the areas will remain moderate PM 10 nonattainment areas and avoid the additional planning requirements that apply to serious PM 10 nonattainment areas.

This action should not be confused with a redesignation to attainment under CAA section 107(d) because Utah hasn't submitted a maintenance plan under section 175(A) of the CAA or met the other CAA requirements for redesignation. The designation status in 40 CFR part 81 will remain moderate nonattainment for both areas until such time as Utah requests, and meets the CAA requirements for, redesignations to attainment.

As initial moderate PM 10 nonattainment areas, both Salt Lake and Utah Counties were required by CAA section 188(c)(1) to attain the PM 10 NAAQS by December 31, 1994. Section 188(b)(2) of the CAA requires EPA to determine whether such moderate areas have attained the NAAQS or not within six months of the attainment date. In the event an area doesn't attain the NAAQS by the attainment date, section 188(d) allows States to request and EPA to approve attainment date extensions if certain criteria are met. On May 11, 1995, the State of Utah requested a one-year extension of the attainment date for both Salt Lake and Utah Counties. On October 18, 1995, we indicated that we were granting the requested one-year extensions. We also indicated in a letter dated January 25, 1996 that we would publish a rulemaking action on the extension requests “in the very near future,” but we didn't do so. Nor did we publish determinations in the Federal Register that the areas had not attained the NAAQS as of December 31, 1994. On March 27, 1996, the State of Utah requested a second one-year extension of the attainment date for Utah County. We didn't publish a determination in the Federal Register that Utah County had not attained the NAAQS as of December 31, 1995.

We are now approving the requested extension of the attainment dates for the Salt Lake County PM 10 nonattainment area and the Utah County PM 10 nonattainment area from December 31, 1994 to December 31, 1995. We are also approving the requested extension of the attainment date for the Utah County PM 10 nonattainment area for an additional year—until December 31, 1996. As we explain more fully below, we believe these extensions are warranted under CAA section 188(d). In addition, we are finding that the Salt Lake County PM 10 nonattainment area attained the PM 10 NAAQS as of December 31, 1995 and the Utah County PM 10 nonattainment area attained the PM 10 NAAQS as of December 31, 1996.

a. Air Quality Data. We are using data from calendar year 1994 to determine whether the area met the air quality criteria for granting a one-year extension of the attainment date under section 188(d) of the CAA.

The Salt Lake County PM 10 nonattainment area includes the entire county. In 1994, Utah's Department of Air Quality (UDAQ or Utah) operated six PM 10 monitors, which were state and local air monitoring stations (SLAMS) and national air monitoring sites (NAMS), in Salt Lake County. We deemed the data from these sites valid and the data were submitted by Utah to be included in AIRS.

In 1994, there were eight exceedances of the 24-hour PM 10 NAAQS at one monitor (North Salt Lake Site) and one exceedance of the 24-hour NAAQS at another monitor (AMC Site). Based on nearby construction activity, Utah requested that the eight exceedances recorded at the North Salt Lake Site in 1994 be excluded under our “Guideline on the Identification and Use of Air Quality Data Affected By Exceptional Events,” (EPA-450/4-86-007). We determined that the North Salt Lake monitor was influenced by highly localized, fugitive dust events caused by the construction activity occurring in the immediate area. Because of those impacts from localized construction near the North Salt Lake site, all data from June 8 to November 23, 1994 were excluded from the data set used in calculations for attainment/nonattainment purposes.

With the exclusion of the above-mentioned block of data, there was only one exceedance recorded at one other monitor (AMC site). Therefore, with only one exceedance of the PM 10 NAAQS recorded in 1994, the area met one of the requirements to qualify for an attainment date extension under section 188(d). 1

b. Compliance with the Applicable SIP. The State of Utah submitted the PM 10 SIP for Salt Lake County on November 14, 1991. On December 18, 1992 (57 FR 60149), EPA proposed to approve the plan as satisfying those moderate PM 10 nonattainment area requirements that were due November 15, 1991. On July 8, 1994 (59 FR 35036), EPA took final action approving the Salt Lake County PM 10 SIP. The SIP control strategies consist of controls for stationary sources and area sources (including controls for woodburning, mobile sources, and road salting and sanding) of primary PM 10 emissions as well as sulfur oxide (SOPM X ) and nitrogen oxide (NO X ) emissions, which are secondary sources of particulate emissions.

Based on information the State submitted in 1995, we believe that Utah was in substantial compliance with the requirements and commitments in the applicable implementation plan that pertained to the Salt Lake County PM 10 nonattainment area when the State submitted its extension request. The milestone report indicates that Utah had implemented most of its adopted control measures, and therefore we believe Utah substantially implemented the RACM/RACT requirements applicable to moderate PM 10 nonattainment areas.

c. Emission Reduction Progress. With its May 11, 1995, request for a one-year attainment date extension for Salt Lake County, the State of Utah also submitted a milestone report as required by section 189(c)(2) of the Act that must, under section 171(1), demonstrate annual incremental emission reductions and reasonable further progress (RFP). On September 29, 1995, Utah submitted a revised version of the milestone report. The revised 1995 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced by approximately 60,752 tons per year, from a 1988 value of 150,292 tons per year to a then current value of 89,540 tons per year.

The effect of these emission reductions appears to be reflected in ambient measurements at the monitoring sites. Data from these sites show no violations of either the annual or the 24-hour PM 10 standard since the 1992-1994 period. Furthermore, in 1994 there was only one exceedance of the 24-hour standard and the highest monitored annual standard at any monitor was 47μg/m 3 . This is evidence that the State's implementation of PM 10 SIP control measures resulted in emission reductions amounting to reasonable further progress in the Salt Lake County PM 10 nonattainment area.

Whether an area has attained the PM 10 NAAQS is based exclusively upon measured air quality levels over the most recent and complete three calendar year period. See 40 CFR part 50 and 40 CFR 50, appendix K. With the effective date of this action, the extended attainment date for Salt Lake County will be December 31, 1995, and the three year period will cover calendar years 1993, 1994, and 1995.

The PM 10 concentrations reported at six different monitoring sites showed one measured exceedance of the 24-hour PM 10 NAAQS between 1993 and 1995. Because data collection was less than 100% at these monitoring sites, the expected exceedance rate for 1994 was 1.03. For 1993 and 1995, it was 0.0. Thus, the three-year average was less than 1.0, which indicates Salt Lake County attained the 24-hour PM 10 NAAQS as of December 31, 1995.

Review of the annual standard for calendar years 1993, 1994 and 1995 reveals that the area also attained the annual PM 10 NAAQS by December 31, 1995. There was no violation of the annual standard for the three year period from 1993 through 1995.

a. Air Quality Data. The Utah County PM 10 nonattainment area includes the entire county. In 1994 and 1995, UDAQ operated four PM 10 monitoring sites, which were either SLAMS or NAMS, in Utah County. We deemed the data from these sites valid and the data was submitted by Utah to be included in AIRS.

We are using data from calendar year 1994 to determine whether the area met the air quality criteria for granting a one-year extension of the attainment date, from December 31, 1994 to December 31, 1995, under section 188(d) of the CAA. We are using calendar year 1995 data to determine whether the Utah County area met the air quality criteria for granting an extension of the attainment date from December 31, 1995 to December 31, 1996.

In 1994, there were no exceedances of the 24-hour or annual PM 10 NAAQS in Utah County. Since no exceedances of the PM 10 NAAQS were recorded in 1994, the area met one of the requirements to qualify for a one-year attainment date extension under section 188(d). 2 In 1995, there were no exceedances of the 24-hour or annual PM 10 NAAQS in Utah County. Since no exceedances of the PM 10 NAAQS were recorded in 1995, the area met one of the requirements to qualify for a second one-year attainment date extension under section 188(d).

b. Compliance with the Applicable SIP. The State of Utah submitted the PM 10 SIP for Utah County on November 14, 1991. On December 18, 1992 (57 FR 60149), EPA proposed to approve the plan as satisfying those moderate PM 10 nonattainment area requirements due November 15, 1991. On July 8, 1994 (59 FR 35036), EPA took final action approving the Utah County PM 10 SIP. The SIP control strategies consist of controls for stationary sources and area sources (including controls for woodburning, mobile sources, and road salting and sanding) of primary PM 10 emissions as well as sulfur oxide (SO X ) and nitrogen oxide (NO X ) emissions, which are secondary sources of particulate emissions.

Based on information the State submitted in 1995, we believe that Utah was in substantial compliance with the requirements and commitments in the applicable implementation plan that pertained to the Utah County PM 10 nonattainment area when Utah submitted its first extension request. The milestone report indicates that Utah County had implemented most of its adopted control measures, and therefore we believe Utah substantially implemented the RACM/RACT requirements applicable to moderate PM 10 nonattainment areas. Based on information the State submitted in 1996, we believe that Utah was in substantial compliance with the requirements and commitments in the applicable implementation plan that pertained to the Utah County PM 10 nonattainment area when the State submitted its second extension request. The milestone report indicates that the State continued to implement its adopted control measures, reducing PM 10 loadings even further, and therefore we believe Utah substantially implemented its RACM/RACT requirements.

c. Emission Reduction Progress. With its May 11, 1995, request for a one-year attainment date extension for Utah County, the State of Utah also submitted a milestone report as required by section 189(c)(2) of the Act that must under section 171(1), demonstrate annual incremental emission reductions and RFP. On September 29, 1995, Utah submitted a revised version of the milestone report. The revised 1995 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced by approximately 3,129 tons per year, from a 1988 value of 25,920 tons per year to a then current value of 22,791 tons per year.

With its March 27, 1996 request for an additional one-year attainment date extension for Utah County, the State of Utah submitted another milestone report. Utah submitted a revised version of this milestone report on May 17, 1996. The March 27, 1996 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced from the 1988 total by approximately 8,391 tons per year.

The effect of these emission reductions appears to be reflected in ambient measurements at the monitoring sites. Data from these sites show no exceedances of either the annual or the 24-hour PM 10 standard in 1994 or 1995. The vast majority of monitored values were well below the 24-hour standard. The highest annual value recorded at any monitor during 1994 and 1995 was 39μg/m 3 . This is evidence that the State's implementation of PM 10 SIP control measures resulted in emission reductions amounting to RFP in the Utah County PM 10 nonattainment area.

Whether an area has attained the PM 10 NAAQS is based exclusively upon measured air quality levels over the most recent and complete three calendar year period. See 40 CFR part 50 and 40 CFR part 50, appendix K. With the effective date of this action, the extended attainment date for Utah County will be December 31, 1996, and the three year period will cover calendar years 1994, 1995, and 1996.

The PM 10 concentrations reported at four different monitoring sites showed no measured exceedances of the 24-hour PM 10 NAAQS between 1994 and 1996, which indicates Utah County attained the 24-hour PM 10 NAAQS as of December 31, 1996.

Review of the annual standard for calendar years 1994, 1995 and 1996 reveals that the area also attained the annual PM 10 NAAQS by December 31, 1996. No monitoring sites showed a violation of the annual standard in the three year period from 1994 through 1996.

(1) Comment: Four commenters stated that they were in favor of EPA's proposed attainment date extensions for Salt Lake County and Utah County and that both nonattainment areas had met the requirements for receiving an attainment date extension. The commenters pointed out that both nonattainment areas have been attaining the PM 10 NAAQS since their proposed extended attainment dates.

Response: We agree that both Salt Lake County and Utah County met all of the requirements to receive an extension of their attainment dates and that both counties attained the PM 10 NAAQS.

(2) Comment: One commenter states that the granting of attainment date extensions after the attainment determination deadlines have passed is not allowed by the CAA. The commenter claims that because we didn't extend the attainment dates for Salt Lake and Utah Counties before the deadline for bumping up the areas, we were obligated to announce their reclassification to “serious” no later than June 31, [sic] 1995.

Response: The commenter is correct that the Act required us to determine by June 30, 1995 whether the areas had attained or not. The commenter is also correct that we failed to make this determination by June 30, 1995. The commenter argues that reclassification to serious is the only permissible result from our failure to make an attainment determination by June 30, 1995. However, the Act does not require this result.

Section 188(b)(2) of the Act reads, “If the Administrator finds that any Moderate Area is not in attainment after the applicable attainment date—(A) the area shall be reclassified by operation of law as a Serious Area. * * *” (emphasis added). We never made the requisite finding—that the areas had not attained by December 31, 1994—to trigger a bump up to “serious” and therefore, a bump up had not occurred. The commenter is attempting to read the requirement for an EPA finding of nonattainment out of the Act.

There is nothing in section 188 that states that EPA, having failed to meet the June 30, 1995 deadline for determining whether the areas had attained or not, is then bound to find that the areas did not attain. We believe that EPA retains discretion to avail itself of any of the options provided by the Act—find that the areas had attained, find that the areas had not attained, or find that an attainment date extension was warranted—if the criteria for such options are met. In this case, we believe that attainment date extensions were warranted, and we do not believe our delay in granting such extensions should form the basis for forcing a bump up of the areas to serious and the imposition of the stricter emission limits and controls that go along with such a bump up. It would indeed be odd, and in our view inconsistent with the statute, to “penalize” sources within the areas in question, due to our failure to act in a timely way.

We note again that in an October 18, 1995 letter to Russell Roberts, the then director of the Utah Division of Air Quality, we stated that we were granting the extensions, and in a subsequent letter, we stated that we would publish the requisite notices in the Federal Register . We failed to follow through with these actions in a timely way, and we are now trying to correct our failure.

Also, as indicated above, Salt Lake County and Utah County attained the PM 10 NAAQS as of the extended attainment dates under this action (December 31, 1995 and December 31, 1996, respectively). Under these circumstances, a bump up makes even less sense.

(3) Comment: One commenter states that the attainment date extensions are contrary to our guidance, which requires states to submit requests for extensions under section 188(d) within 90 days after the attainment date, and requires resolution of such requests within 6 months after the attainment date. According to the commenter, the guidance clearly reads section 188(d) as applying only up to the point at which a bump up is required. The commenter argues that we have no basis for departing from our longstanding guidance in this matter.

Response: Nothing in the Act specifies a particular deadline for a State request for an attainment date extension. In this case, the State of Utah submitted an attainment date extension request on May 11, 1995, before section 188's June 30, 1995 deadline for us to determine the areas' attainment status. In addition, as noted in Utah's May 11, 1995 request, Utah had previously submitted a draft request to us. We think Utah initiated its request for attainment date extensions within a reasonable period of time, and provided supplemental information to clarify the request in a timely way. Utah and EPA worked through issues with the request over the summer of 1995, and, in the fall of 1995, we indicated we were approving the extension requests. Under the circumstances, we think Utah's actions were reasonably consistent with our guidance. We don't believe the fact that Utah's formal request fell outside the 90-day period described in our guidance forms an adequate basis to ignore or deny Utah's request. Our guidance is just that—guidance; it cannot be considered a binding document.

We don't believe our guidance speaks to the issue of what should happen in a case where EPA fails to make an attainment determination by June 30, 1995, as required by the Act. If anything, our guidance clearly recognizes that we must first determine that the area has not timely demonstrated attainment of the NAAQS before the area is reclassified to serious under section 188(b). (See page 10 of our November 14, 1994 guidance memorandum, “Criteria for Granting 1-Year Extensions of Moderate PM-10 Nonattainment Area Attainment Dates, Making Attainment Determinations, and Reporting on Quantitative Milestones,” signed by Sally L. Shaver.) We believe our position is reasonable. The alternative position, expressed by the commenter, would impose the burden of EPA's failure to act in a timely way upon Utah (additional planning requirements) and sources within the areas (more stringent control requirements in the form of BACM/BACT), regardless of whether an extension of the attainment date is warranted. We don't believe this position is reasonable.

If EPA is not allowed to exercise its discretion to grant an extension of the attainment date where the statutory criteria have been met—discretion Congress provided us alongside the requirement to determine whether areas timely attained—it would appear to frustrate Congress' obvious desire to provide States that are close to achieving attainment an alternative to undergoing reclassification.

(4) Comment: One commenter refers to air quality data collected at an air monitoring station in Salt Lake County. The commenter asserts that the North Salt Lake monitoring station recorded a violation of the annual PM 10 standard and eight exceedances of the 24-hour standard in 1994 and that we may not exclude these data from regulatory use. Thus, according to the commenter, Salt Lake County doesn't meet one of the criteria for an attainment date extension—that the area recorded no exceedances of the annual PM 10 standard and no more than one exceedance of the 24-hour PM 10 standard in the year preceding the extension year. The commenter quotes from a letter dated October 18, 1995, from Richard Long, Director, Air Program, EPA Region VIII, to Russell Roberts, Director, Utah Division of Air Quality. In the letter, we agreed to exclude some PM 10 data collected at the North Salt Lake station in 1994 and agreed to grant a one-year extension of the attainment date. Attachment I of the letter elaborated our technical comments. Part of the attachment is quoted by the commenter and reads, “The data collected at the North Salt Lake station in the summer and fall of 1994 should be regarded as ordinary data, unaffected by exceptional events.” The commenter indicates that we had determined that the data had not met criteria for exclusion and we had concluded that there was no basis for excluding the data due to exceptional events. The commenter also points out that although we determined that the data didn't qualify as an exceptional event, we did decide that there were “extenuating circumstances” during the 1994 construction episode and because of this, the exceedances from the North Salt Lake monitor should be excluded. The commenter cites the EPA document, Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events, EPA-450/4-86-007 (1986) and asserts that the criteria in the document are the sole basis upon which we may exclude exceedances that are allegedly due to construction activity. The commenter asserts that neither the Act nor EPA rules or guidance allow the exclusion of exceedance data based on a generalized claim of “extenuating circumstances.”

Response: We disagree with both of the commenter's assertions, i.e., that there was no basis for deciding to exclude the data, and that EPA had determined that the data had not met EPA criteria for exclusion from regulatory use. The commenter erroneously believes that the statement in the October 18, 1995 letter to the Director of Utah's DAQ indicating that we were not inclined to treat the 1994 North Salt Lake station's data as data affected by exceptional events precluded us from excluding the data for regulatory use on any other grounds.

Our regulations explaining the computations necessary for collecting and analyzing particulate matter data in order to make appropriate regulatory determinations, including attainment determinations, are found at appendix K of 40 CFR part 50. Section 1.0 of appendix K explains that ambient PM 10 data must be measured by a reference method based on appendix J of part 50, and designated in accordance with 40 CFR part 53. Similarly, while expressly mentioning the required frequency of measurements, that section indicates, generally, that the data protocols to be followed in order to make determinations regarding attainment must be consistent with 40 CFR part 58. In addition to specifications regarding the frequency of ambient measurements, part 58 addresses other requirements, including proper siting of monitoring stations (to ensure that the data samples correctly reflect the regulatory goal for which monitoring is being undertaken—see 40 CFR part 58, appendix D), and pollutant-specific probe siting criteria (to ensure the uniform collection of compatible and comparable air quality data—see 40 CFR part 58, appendix E). It, therefore, follows logically that ambient data collected at sites not meeting the requirements of parts 50, 53, and 58 of 40 CFR (and their associated Appendices) may be determined by EPA to be inadequate, and, thus, be invalidated for purposes of regulatory decisionmaking.

Under appendix K (and associated guidance), high ambient values of PM 10 that are determined to be due to exceptional events may be “flagged”, i.e., marked for special treatment, when submitted to the AIRS database. This is because, when making required regulatory decisions, the use of such data —which may not be representative of typical ambient values— could result in inappropriate estimates of the expected annual value. Consequently, the 1986 Exceptional Events Guideline, cited by the commenter, sets forth criteria for flagging ambient data considered to have been influenced by exceptional events. However, the flagging of data does not, by itself, result in the exclusion of data from regulatory decision-making. The 1986 Guideline document defines several types of activities that influence ambient data and may qualify for exceptional events treatment, including construction projects. The Guideline provides guidance for States regarding how to treat and report data submitted under an exceptional events claim. The reporting methodologies includes the various conventions to “flag” or highlight the data when placing it in AIRS. Focusing, as it does, on exceptional events, the 1986 Guideline does not address, therefore, all the various circumstances and conditions under which EPA may make determinations regarding whether such data should be excluded for regulatory purposes; it only advises States concerning what procedures they need to follow in making data exclusion requests. The guidance expressly states that the policy “carries no prior presumption towards use or non-use of flagged data.” And, indeed, decisions on how flagged data are used for specific regulatory purposes, e.g., attainment designations or demonstrations, control strategy, etc., are made by EPA on a case-by-case basis.

As noted earlier, the comments concern PM 10 data, including eight exceedances of the 24-hour National Ambient Air Quality Standard, that were collected at the North Salt Lake station between June 8 and November 23, 1994, resulting in an annual arithmetic mean value for 1994 of 58μg/m 3 . Utah believed this data had been unduly affected by a construction project next to the air monitoring station, and advised us of its intention to flag the data. Consequently, when it transcribed the 1994 data onto computer files for submittal to AIRS, Utah included the letter “J” in a predetermined field associated with each PM 10 concentration observed during the affected period. According to a convention of AIRS, the data were thereby flagged as having been, in Utah's opinion, influenced by an exceptional event. On December 19, 1994, Utah sent a letter requesting that we approve the data from the North Salt Lake station from June 8 to November 23, 1994 as having been influenced by an exceptional event. A decision to exclude the flagged data would have reduced the annual arithmetic mean value for 1994 to 47μg/m 3 . To show our concurrence, we could have added a “J” to a second field adjacent to each datum, according to the same AIRS convention. Utah's letter was accompanied by supporting material consistent with the 1986 Guideline.

In response to this request, we noted that a similar exceedance had occurred at the North Salt Lake station on September 30, 1993. The State had attached an exceptional events treatment flag when it reported the data in AIRS for the entire block of data recorded from August 28 through October 5, 1993, the life of the construction project. We had applied our concurrence flag only to the September 30 exceedance, however, indicating our agreement that at least that exceedance could be considered the result of an exceptional event. After reviewing Utah's 1994 request, we decided not to apply our “J” flags to the data collected from June 8 to November 23, 1994 because we believed that the ambient event did not satisfy criteria in our regulations and the 1986 Guideline for treatment as an exceptional event. Primarily, we concluded that the construction near the monitoring station during the summer and fall of 1994 was a recurrence within one year of similar construction activity, i.e., the 1993 construction project and its resultant exceedance, and exceptional events are defined, in part, as events that are not expected to recur at a given location. Also, the 1986 Guideline indicates that for consideration as an exceptional event certain activities must occur only over a “short time period”, but, here, the 1994 construction project continued for longer than 30 days, (30 days being our general rule of thumb for what is meant by the term “short time period” as used in the 1986 Guideline). We advised Utah of our decision in a letter dated March 20, 1995. In the same letter we advised Utah that we “may have some latitude in how these data will be used in determining the attainment status' of Salt Lake County, and asked the State for additional information. As the letter further explained, “[w]e will use the additional information when considering the attainment status of the area.”

Our October 18, 1995 letter to Utah conveyed two determinations made by us regarding the data collected at the North Salt Lake station between June 8 and November 23, 1994: (1) That we did not consider the data to have been affected by exceptional events; and (2) that the data would, nonetheless, be excluded from the data set used in the calculations for attainment on other grounds. In deciding to exclude the data, we considered several factors that were subsequently brought to our attention by the State in support of their data exclusion request, in addition to the explanation of the construction event given in Utah's December 19, 1994 letter. These include the following:

1. Photographs, tables of PM  10 concentrations, chemical analyses in support of mass balance estimations, and the results of computer modeling of chemical mass balance, all of which were revised analyses and/or elaborations or clarifications of supporting materials submitted with Utah's December 19, 1994 letter.

2. More extensive explanations of information contained in a letter from the Salt Lake City Department of Public Utilities describing relevant conditions at the project site, and a labor dispute that disrupted the construction project, also submitted with Utah's December 19, 1994 letter.

3. The State's arguments emphasizing that the small size of the area disturbed during the construction project, that is to say, the localized character of the episode, tended to prove that conditions, and the consequent ambient values recorded at this single monitor, were not representative of ambient values throughout the nonattainment area, or with historically recorded values during summer/early fall months.

4. Additional information in support of the State's attempt to distinguish the construction project in 1994 (the extension of a sewer line) as different from the 1993 construction project (the extension of a pipeline through a portion of roadway), as a basis for the assertion that the construction, although similar in type, was non-recurring.

5. Additional materials providing further explanation of the 1994 ambient events, given in Utah's letter to EPA of April 20, 1995 (mis-dated March 24, 1995).

6. Additional materials providing further explanation of the 1994 ambient events, submitted with Utah's milestone report of September 29, 1995.

The letter from the Salt Lake City Department of Public Utilities mentioned in the above list explains that the construction project was contracted to a private individual and that, during the initial phase, a deep trench was dug about 40 feet east of the site, and the road proceeding north from the site was also trenched in the middle for about a 1/4 of a mile. Along with gravel pit and hauling activities, the project involved frequent dirt spillage along the road. This dirt became airborne as a result of heavy vehicular traffic during commuter hours. Due to a dispute over the contract, work was stopped at the construction site between August 10 and September 26. EPA was also advised that, although the contract required dust control measures to be undertaken during the life of the project, it appears that this requirement of the contract was not being adhered to. During the month-and-a-half long work-stoppage, the trench had been backfilled to the surface, but was not paved, so that dirt and sediment continued to escape. Moreover, the placement of barricades and “closed” signs on the road were apparently not successful in deterring vehicular traffic and dust re-entrainment also continued to occur. Again, it should be noted that this construction area was in extremely close proximity to the monitoring station in question (estimated as being within 20 feet of the monitor, which is located on a platform 4 meters above ground level).

As described earlier, requirements that monitoring stations adhere to proper monitoring objectives and scale of representativeness are found in 40 CFR part 58, appendix D. In our letter to Utah dated March 20, 1995, discussed earlier in this response, although we disapproved their request for exceptional events treatment, we asked the State to provide additional information on the events leading to the exceedances. In particular, we commented on and requested further information about the appropriateness of the monitoring station site. The letter stated:

Based on our review of the additional explanatory materials supplied by Utah at our request, we believed that during the period of construction activity in 1994 when eight PM 10 exceedances were recorded, the North Salt Lake station did not meet the approved monitoring objective or scale of representativeness required under 40 CFR part 58. Subsequent to this, we did ask Utah to consider re-siting the monitor because of these episodes. In particular, the proximity of the earth-moving activities to the air monitoring station, and the failure of the construction company to effectively implement dust suppression control measures at the trenched areas on-site and along the roadway, and at the site in general, resulted in the station's effective noncompliance with the probe siting criteria and requirements of 40 CFR part 58, appendix E. The version of this regulation that was in effect in 1994 read, in part: “Stations should not be located in an unpaved area unless there is vegetative ground cover year round, so that the impact of wind blown dusts [sic] will be kept to a minimum.” For all of these reasons, we determined that it was appropriate to exclude the data collected at the North Salt Lake monitoring station as unrepresentative of ambient effects on the population exposed to the particulate matter generated during this period. Accordingly, because this data was deemed to be inappropriate for NAAQS purposes, we exercised our discretion under 40 CFR part 50, appendix K to exclude the data from regulatory use.

(5) Comment: One commenter states that Utah has not met one of the prerequisites for an attainment date extension—section 188(d)'s requirement that the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan. The commenter cites to several EPA letters to Utah that identified concerns with State implementation of SIP measures. According to the commenter, there is no showing in the record that all our concerns were met and that Utah had fully implemented the SIP.

Response: The commenter is correct that we had identified a number of concerns with SIP implementation during the summer of 1995. However, at our behest, the State revised its milestone report/extension request and re-submitted it to us on September 29, 1995. On October 18, 1995, we found that the revised report was sufficient to meet our concerns, and indicated that we would grant the State's request for a one-year extension for Salt Lake and Utah Counties. In that October 18, 1995 letter, from Richard R. Long, to Russell Roberts, we stated the following:

We believe the State's September 1995 revised milestone report/extension request, and May 17, 1996 extension request for Utah County, are adequate to support this action.

The language of section 188(d)(1) of the Act states that the Administrator may extend the attainment date if “the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan * * *” The commenter insists that we cannot redefine the word “all” to mean “some” or “most” and asserts that if there has not been 100% compliance with SIP requirements, the provisions of 188(d)(1) have not been met.

Initially, we note that the language of section 188(d)(1) refers to SIP requirements and commitments that apply to the State, not individual sources. The State has an obligation under section 110 of the Act to enforce the requirements of the SIP, but it would be unreasonable to expect the State to take an enforcement action for every apparent violation of the SIP or to achieve 100% source compliance nor have we interpreted section 110 to require that level of enforceability. Furthermore, we believe that substantial compliance or compliance with most requirements and commitments on the part of the State is sufficient to support an extension where the State has demonstrated RFP toward attaining the NAAQS. We do not believe Congress' goal was to bump areas up to serious that didn't attain by their applicable deadline, but appeared likely to achieve attainment through further implementation of control measures in the SIP.

The structure of our 1994 Guidance (“Attainment Determination and the Processing of Initial PM 10 Nonattainment Area SIPs,” November 14, 1994, signed by Sally Shaver) further explains why we believe that substantial compliance is adequate to support an attainment date extension. Section III of the Guidance contains our criteria for obtaining an extension of the attainment date, and makes clear that we were prepared to grant extensions to PM 10 areas that had not yet received EPA approval of their nonattainment SIPs. In these cases, the Guidance clearly indicates that State compliance is to be measured against the latest federally-approved particulate matter SIP for the area, and in many instances, this would have been a SIP submitted in response to the pre-1990 Clean Air Act. To further address this issue, we provided in the Guidance that we expected States to demonstrate that (1) control measures had been submitted in the form of a SIP revision and substantially implemented to satisfy the RACM/RACT requirement for the area, and (2) the area had made emission reduction progress that represented reasonable further progress toward timely attainment of the PM 10 NAAQS. In addition, we did not state that we would not grant an extension if the State failed to meet these requirements, but rather that we would be “disinclined to grant an attainment date extension” in such a case.

In other words, our Guidance recognized the difficulties some areas were having submitting their PM 10 SIPs and gaining EPA approval within the time frames provided by the 1990 Amendments and indicated our belief that we had some flexibility under the Act to grant extensions of the attainment date even if all the measures required by the 1990 amendments were not fully implemented at the time the request was made. Pursuant to this approach, we approved a number of extension requests. Denver's PM 10 attainment date was extended in a Federal Register notice published on October 6, 1995 (60 FR 52312) prior to the approval of a SIP for the area. Likewise, the attainment dates were extended for Spokane, Washington and Wallula, Washington (60 FR 47276), and Power-Bannock Counties, Idaho and Sandpoint, Idaho (61 FR 20730), with a second one-year extension granted for Power-Bannock Counties (61 FR 66602). Given our prior practice, we believe it would be unfair to demand more from the Salt Lake and Utah County areas especially since Utah submitted a nonattainment SIP for these areas by the November 15, 1991 statutory deadline and we approved the SIP before the December 31, 1994 statutory attainment date.

So, in our view, substantial implementation is an appropriate benchmark. For both counties, the SIP includes four main types of measures: solid fuel burning provisions, road salting and sanding provisions, mobile source provisions, and stationary source provisions. The State's 1995 milestone report/extension request for both counties, and 1996 report/extension request for Utah County, indicate that the State substantially implemented the measures described in the SIP for these four categories. For example, the State implemented a mandatory no-burn program in both counties that was substantially similar to the program described in the SIP. The State adopted a rule for road salting and sanding that requires application of salt that is at least 92% sodium chloride, other material as clean as salt, or vacuum sweeping within three days of the storm. Although this wasn't identical to the federally approved measure in the SIP at the time, we believe it achieves substantially equivalent results. In fact, Utah submitted a SIP revision on February 1, 1995 that embodies the revised rule. We approved this SIP revision on February 6, 1999 (64 FR 68031) based on our belief that it achieves substantially equivalent results to the original provision.

The SIP discusses the possibility of closing Provo Canyon to truck traffic. The State placed a monitor in Provo Canyon to evaluate the impact of diesel traffic on air quality. Because the monitoring showed no significant impact, the State concluded that there would be no benefit from restricting heavy duty truck traffic from Provo Canyon. Although Utah never implemented closure of Provo Canyon to truck traffic, the State did not actually commit to such a closure in the SIP.

The State began implementing a diesel I/M program on December 1, 1994 that is substantially similar to the program outlined in the SIP. We note that the SIP language provided for modification of the program in response to program experience and additional information.

For stationary sources, the State substantially implemented the requirements contained in the SIP. In particular, the largest sources in the areas installed and implemented RACT as anticipated by the SIP. We note that in some cases, the State adopted and implemented changes to the emissions limitations contained in the SIP. Although we don't agree with them, we don't believe it is appropriate to penalize the State for making such changes because the language of the currently-applicable SIP appears to allow the State such latitude (see UACR 307-1-3.2.4; Appendix A to PM 10 SIP.) We have had ongoing discussions with the State regarding these “director's discretion” provisions in the context of the State's future development of redesignation requests and maintenance plans for the two counties, and have informed the State that we believe this apparent discretion to unilaterally change SIP terms is inconsistent with the SIP oversight role provided EPA under the Act, and would need to be removed if maintenance plan submissions for these areas are to be found approvable.

The commenter is correct that our undated letter from Douglas Skie to Russell Roberts cited concerns with permit language that purported to replace SIP limits with emission limits in “approval orders.” Based on this letter and other elements of our comments at the time, it appears that we were evaluating the State's implementation based on our traditional view that SIP requirements may not be modified without EPA approval of a SIP revision. However, given the language referenced above, that is contained in the currently-applicable SIP authorizing such changes, we don't believe that insisting on this traditional view in response to past actions is appropriate. We believe SIP implementation must be evaluated against the SIP as written, even though we may not agree with all SIP terms.

Also, the commenter characterizes some of the implementation issues as “deficiencies in the state's NSR program” and states that “[a] fully adequate NSR program is a mandatory SIP requirement as well.” We don't believe the commenter has accurately characterized the situation. Utah had and continues to have a fully approved NSR program. While there were issues with some permitting actions, our October 18, 1995 letter indicated that most of these were resolved or were non-critical in nature. There were only two that we deemed time-critical, and we stated our satisfaction with the progress made with respect to these since the State was actively working to resolve our issues when we sent our October 18, 1995 letter.

(6) Comment: One commenter refers to our October 18, 1995 letter and points out that this letter sets out four conditions that Utah would have to meet under the terms of the attainment date extensions and says that the agency has failed to demonstrate that those conditions have been fully met.

Response: Although these four comments were referred to as conditions in our letter to Utah, these conditions are not required under the statute or in our policy in order for an area to receive an attainment date extension. Thus, we believe these “conditions” are irrelevant to our action here in granting such extensions. Nonetheless, we believe Utah substantially met these conditions as described elsewhere in this document.

(7) Comment: One commenter states that we must announce that both nonattainment areas are reclassified to serious because they failed to attain the PM 10 NAAQS by the December 31, 1994 attainment date.

Response: We are not reclassifying either Salt Lake County or Utah County to serious nonattainment because, as this action explains, these areas qualified for attainment date extensions and subsequently attained by the extended attainment dates. The action to extend the attainment dates for these areas is being finalized in this action.

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 a state request as meeting federal requirements and imposes no requirements. 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 does not impose any enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state request for an attainment date extension, 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.

Because EPA's role concerning today's action is only to approve a state request for an attainment date extension, provided that such request meets the criteria of the Clean Air Act, and to make determinations required of EPA by the CAA, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), relating to the use of voluntary consensus standards, 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 July 18, 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 17, 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).)

For the purpose of this document, we are giving meaning to certain words as follows:

(i) The words or initials Act of CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials Pb mean or refer to the element lead.

(iv) The initials MDEQA mean or refer to the Montana Department of Environmental Quality.

(v) The initials SIP mean or refer to State Implementation Plan.

(vi) The words State or Montana mean the State of Montana, unless the context indicates otherwise.

On November 6, 1991 (56 FR 56694), we designated the East Helena area as nonattainment for Pb. This designation was effective on January 6, 1992 and required the State to submit a Part D SIP by July 6, 1993. On August 16, 1995, July 2, 1996 and October 20, 1998 the Governor of Montana submitted SIP revisions to meet the Part D SIP requirements. On October 10, 2000 (65 FR 60144) we proposed to partially approve and partially disapprove these State submittals. In a separate action published today we are finalizing our proposal to partially approve and partially disapprove the State submittals.

Subsequent to our October 10, 2000 proposed rulemaking, the State of Montana submitted another revision to the East Helena Pb SIP on November 27, 2000. Since the State's November 27, 2000 submittal revises portions of the plan on which we proposed action, we believe we should act on the new provisions at the same time we take final action on our proposed rulemaking, so that the end result will be a federally approved plan that is consistent with the current State plan (except for those provisions of the plan that we are partially disapproving in a separate action published today).

With the November 27, 2000 submittal, the State is revising the control strategy for the Asarco lead smelter in East Helena, Montana, by removing reference to the Pb bullion granulating process in the Dross Building from the control plan and by renaming several emission points and a process vessel at the Asarco facility. The revisions were effective at the State level on September 15, 2000.

When the State developed the Pb SIP for East Helena (SIP submitted on August 16, 1995), at the request of Asarco, the SIP referenced a new granulating technology in the Dross Building. We proposed approval of this SIP on October 10, 2000 (65 FR 60144). Subsequently, Asarco found that the granulating technology did not work well and discontinued its use, reverting back to conventional drossing technology in 1997. The MDEQ has concluded that discontinuing the granulating technology and reverting back to the conventional technology will not change any of the inputs or assumptions in the modeling demonstration used to demonstrate compliance with the National Ambient Air Quality Standards (NAAQS) for Pb in East Helena. Additionally, the MDEQ has concluded that changing the drossing process will not have an effect on actual levels of fugitive Pb emissions from the Dross Plant building or on actual levels of Pb emissions from the Dross Plant baghouse stack. The MDEQ reached these conclusions based on the following information:

• The subject drossing activities are conducted entirely within the Dross Plan building;

• The Dross Plant building is completely enclosed and ventilated to the Dross Plant baghouse;

• There will be no change in the fugitive emission rate with the conventional technology; and

• There will be no change in emissions from the Dross Plant baghouse stack.

We have reviewed the MDEQ's conclusions and supporting documentation; we agree that there will be no change in levels of emissions from the Dross Plant building or Dross Plant baghouse stack and no changes in the inputs and assumptions used in the Pb NAAQS attainment demonstration. Therefore, we are approving the revisions to the SIP that remove all references to the granulating process in the Dross Plant. The specific sections of exhibit A to Asarco's stipulation that are being revised thus include: Sections 3(A)(12)(a), 3(A)(12)(p), 3(A)(12)(q), 3(A)(12)(r), and 5(G)(4). These revisions, which became effective on September 15, 2000, replace the same numbered sections in previously approved SIP revisions.

The November 27, 2000 submittal also renamed two emission points and a process unit to better reflect the current configuration of Asarco's East Helena facility. All references to the “Crushing Mill Baghouses # 1 and #2” and “Crushing Mill Baghouse Stacks #1 and #2” have been replaced with “Sinter Plant Roof Baghouses #7 and #8.” We understand that there is no change in emissions from or in waste gas streams vented to these baghouses. We are approving the renaming of these baghouses. The specific sections of exhibit A to Asarco's stipulation that are being revised to reflect the new baghouse names include: sections 1(B)(4), 1(B)(5), 3(A)(3), 3(A)(4), 3(A)(16)(a), 5(D)(1), 5(D)(2), 8(A)(3), 9(B)(2), and 9(B)(3). These revisions, which became effective on September 15, 2000, replace the same numbered sections in previously approved SIP revisions.

Finally, the November 27, 2000 submittal also renamed the “60-ton kettle” in the Dross Plant to the “#4 kettle.” Again, this was done to better represent the current configuration at the Asarco facility. We understand that there is no change in emissions from the “60-ton kettle.” We are approving the renaming of the “60-ton kettle” to the “#4 kettle.” The specific sections of exhibit A to Asarco's stipulation that are being revised to reflect the new kettle name include: sections 3(A)(12)(a), 3(A)(12)(i), 3(A)(12)(m), 3(A)(12)(o) and 3(A)(12)(p). These revisions, which became effective on September 15, 2000, replace the same numbered sections in previously approved SIP revisions.

We are approving the State's November 27, 2000 submittal, which revised the part of the control strategy related to the Asarco Pb smelter by removing references to the Pb bullion granulating process (in the Dross Plant) and by renaming several emission points and a process vessel at the Asarco facility. The specific sections of exhibit A to Asarco's stipulation that are being revised include: 1(B)(4), 1(B)(5), 3(A)(3), 3(A)(4), 3(A)(12)(a), 3(A)(12)(i), 3(A)(12)(m), 3(A)(12)(o), 3(A)(12)(p), 3(A)(12)(q), 3(A)(12)(r), 3(A)(16)(a), 5(D)(1), 5(D)(2), 5(G)(4), 8(A)(2), 8(A)(3), 9(B)(2), and 9(B)(3). These revisions, which became effective on September 15, 2000, replace the same-numbered sections in previously approved SIP revisions.

We caution that if Asarco is subject to more stringent requirements under other provisions of the Act ( e.g., section 111, Part C, or SIP-approved permit programs under Part A), our approval of this SIP revision would not excuse Asarco from meeting these other more stringent requirements. Also, our approval of this SIP revision is not meant to imply any sort of applicability determination under other provisions of the Act ( e.g., section 111, Part C, or SIP approved permit programs under Part A).

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments on this minor revision to the Lead SIP. 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 are filed. This rule will be effective August 17, 2001, without further notice unless the Agency receives adverse comments by July 18, 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.

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

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

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

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 17, 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, the terms “you” and “me” refer to the reader of this final rule and to sources subject to the State rule, and the terms “we,” “us,” or “our” refers to the EPA.

Section 110 of the Clean Air Act (Act or CAA) requires States to develop air pollution control regulations and strategies to ensure that state air quality meets the national ambient air quality standards (NAAQS) established by the EPA. Each State must submit the regulations and emission control strategies to the EPA for approval and promulgation into the federally enforceable SIP.

Each federally approved SIP protects air quality primarily by addressing air pollution at its points of origin. The SIPs can be and generally are extensive, containing many State regulations or other enforceable documents and supporting information, such as emission inventories, monitoring documentation, and modeling demonstrations (attainment demonstrations).

In order for State regulations to be incorporated into the federally enforceable SIP, States must formally adopt the regulations and emission control strategies consistent with State and Federal requirements. This process generally includes public notice, public hearings, public comment periods, and formal adoption by state-authorized rulemaking bodies.

Once a State rule, regulation, or emissions control strategy is adopted, the State submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the State submittal. If adverse comments are received, they must be addressed prior to any final Federal action (they are generally addressed in a final rulemaking action).

This rule was parallel processed. Parallel processing means that EPA proposes action on a State rule before it becomes final under State law. Under parallel processing, EPA takes final action on its proposal if the final, adopted state submittal is substantially unchanged from the submittal on which the proposed rule was based, or if significant changes in the final submittal are anticipated and adequately described in EPA's proposed rule or result from needed corrections determined by the State to be necessary through review of issues described in EPA's proposed rule.

All State regulations and supporting information approved by the EPA under section 110 of the Act are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, titled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR, but are “incorporated by reference,” which means that EPA has approved a given state regulation (or rule) with a specific effective date.

Enforcement of a State regulation before and after it is incorporated into a federally approved SIP is primarily a State responsibility. After the regulation is federally approved, however, EPA is authorized to take enforcement actions against violators. Citizens are also offered legal recourse to address violations in the Federal courts as described in section 304 of the Act.

Sections 108 and 109 of the Act require the EPA to establish NAAQS for certain air pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare. In 1979, EPA promulgated an one-hour ozone standard of 0.12 parts per million (ppm) or 120 parts per billion (ppb) to protect public health. 44 FR 8202 (February 8, 1979).

Ground-level ozone is generally not directly emitted into the air by sources. Rather, Volatile Organic Compounds (VOC) and NO X , both emitted by a wide variety of sources, react in the presence of sunlight to form additional pollutants, including ozone. NO X and VOC are referred to as precursors of ozone.

The Act, as amended in 1990, required EPA to designate as nonattainment any area that was violating the one-hour ozone standard, generally based on air quality monitoring data from the 1987 through 1989 period. Act section 107(d)(4); 56 FR 56694 (November 6, 1991). The Act further classified these ozone nonattainment areas, based on the areas' ozone design values (generally the fourth highest daily peak one-hour ozone concentrations over a three year period at the areas' worst-case ozone monitoring sites) as marginal, moderate, serious, severe, or extreme. Marginal areas were experiencing the least significant ozone nonattainment problems (lowest ozone design values and generally fewer ozone standard exceedences per year), while the areas classified as severe and extreme had the most significant ozone nonattainment problems.

The control requirements and the dates by which attainment of the ozone standard are to be achieved vary with an area's classification. Marginal areas were subject to the fewest mandated emission control requirements and had the earliest attainment date (deadline), November 15, 1993. Moderate areas were subject to more stringent planning and emission control requirements, but were provided more time to attain the ozone standard, until November 15, 1996. Severe and extreme areas are subject to even more stringent planning and control requirements, but are also provided more time to attain the ozone standard. Serious nonattainment areas fall in between moderate nonattainment areas and severe nonattainment areas in terms of planning requirements and mandated emission control requirements.

The Metro-East/St. Louis area was classified as moderate nonattainment for ozone, giving it an attainment date of November 15, 1996. This area is defined to contain Madison, Monroe, and St. Clair Counties in Illinois (the Metro-East portion of the nonattainment area), and Franklin, Jefferson, St. Charles, and St. Louis Counties and St. Louis City in Missouri. 40 CFR 81.314 and 81.326.

The Act requires moderate and above ozone nonattainment areas to be addressed in SIPs through ozone attainment demonstrations, including adopted emission control regulations sufficient to achieve the ozone standard by the applicable ozone attainment date. The requirements of the Act for ozone attainment demonstrations for moderate and above ozone nonattainment areas are determined by considering several sections of the Act. Section 172(c)(6) of the Act requires SIPs to include enforceable emission limitations, and such other control measures, means or techniques as well as schedules and timetables for compliance, as may be necessary to provide for attainment by the applicable attainment date. Section 172(c)(1) of the Act requires the implementation of reasonably available control measures (including Reasonably Available Control Technology [RACT] for stationary industrial sources), and requires the SIP to provide for sufficient annual reductions in emissions of VOC and NO X as necessary to attain the ozone standard by the applicable attainment date. Section 182(j)(1)(B) requires the use of photochemical grid modeling or other methods judged to be at least as effective to demonstrate attainment of the ozone standard in multi-state moderate ozone nonattainment areas (the Metro-East/St. Louis ozone nonattainment area is such an area). The attainment demonstrations based on photochemical grid modeling address the emission impacts of both VOC and NO X .

The NO X emission control regulations (collectively referred to as the NO X rule) addressed in this final rule are intended to meet the requirements for the ozone attainment demonstration for the Metro-East/St. Louis ozone nonattainment area.

On October 27, 1998, the EPA promulgated a NO X SIP call (requiring the development of NO X SIPs and rules) for a number of states, including the State of Illinois. The NO X SIP call requires the subject States to develop NO X emission control regulations on a regional basis (generally statewide) of sufficient nature to provide for statewide NO X emissions at or below prescribed state-wide NO X emission budgets in 2007. The regional NO X emission reductions will address ozone formation and transport in the area of the Country primarily east of the Mississippi River, but will also affect the Metro-East/St. Louis area as a whole. Although the NO X SIP call will impact the Metro-East/St. Louis area, it should be noted that the State of Illinois has not submitted the NO X rule reviewed here for the purpose of meeting the requirements of the NO X SIP call. As noted by the Illinois Environmental Protection Agency (IEPA), the IEPA has submitted the NO X rule reviewed here strictly for the purpose of attaining the one-hour ozone standard in the Metro-East/St. Louis area.

Illinois adopted NO X rules to address the NO X SIP call, and has submitted adopted rules for this purpose. The actions reflected in this rule in no way relate to the State's EGU NO X rule under the NO X SIP call. The NO X rule reviewed here is another, separate rule affecting EGUs, and has been supplemented by the NO X SIP call-based rules.

The State of Illinois has the primary responsibility under the Act for ensuring that all portions of Illinois meet the ozone standard, and is required to submit air quality attainment and maintenance plans that specify emission limitations, control measures, and other measures necessary for attainment, maintenance, and enforcement of the NAAQS within the State. The attainment plan for ozone must meet the CAA requirements discussed above, must be adopted pursuant to notice and comment rulemaking, and must be submitted to the EPA for approval as part of the SIP.

The States of Illinois and Missouri have worked cooperatively to provide the EPA with ozone attainment demonstrations for this area. Analyses conducted to support the attainment demonstrations for this area indicate that regional reductions in upwind NO X emissions are needed to reduce the transport of ozone into this area and to support the adopted ozone attainment demonstrations. These regional reductions in NO X emissions include control of NO X emissions from EGUs in Illinois and Missouri along with control of NO X emissions in other upwind States. The ozone attainment demonstration for Illinois (undergoing separate review by the EPA) is based, in part, on limiting NO X emissions from EGUs throughout Illinois to an emissions rate of no higher than 0.25 pounds NO X per million British thermal units of heat input (0.25 pounds NO X /MMBtu of heat input) through Subpart V of Part 217 of the Illinois Pollution Control Board rule. The Missouri EGU NO X emission rates would be limited to 0.25 pounds NO X /MMBtu of heat input in the eastern one-third of the State and to 0.35 pounds NO X /MMBtu of heat input in the western two-thirds of the State. For other impacting upwind States, the Illinois and Missouri ozone attainment demonstration assumes that EGU NO X emissions would be limited to 0.25 pounds NO X /MMBtu of heat input.

At the time the original attainment demonstrations were prepared for the Metro-East/St. Louis ozone nonattainment area (the original attainment demonstrations were reviewed by the EPA in a proposed rule on April 17, 2000, 65 FR 20404; a supplemental proposed rule was published on April 13, 2001, 66 FR 17647), the IEPA and the Missouri Department of Natural Resources (MDNR) assumed that the upwind States would be required to achieve the 0.25 pounds NO X /MMBtu emission rate limits for EGUs (or even tighter NO X emission limits) by May 1, 2003 based on the October 1998 NO X SIP call. A subsequent, August 30, 2000, Court decision ( Michigan v. EPA, 2000 WL 1341477 (D.C.Cir.)) , supported the NO X SIP call, but delayed its compliance date to May 31, 2004. The IEPA and MDNR have revised the ozone attainment demonstrations to reflect the delay in the upwind emission reductions and to demonstrate attainment of the one-hour standard by May 31, 2004 (a supplemental proposed rule on the revised attainment demonstrations was published on April 13, 2001 (66 FR 17647). The revised ozone attainment demonstrations continue to support the EGU 0.25 pounds NO X /MMBtu emission limit for Illinois and the EGU 0.25/0.35 pounds NO X /MMBtu emission limits for Missouri as being adequate to achieve attainment of the one-hour ozone standard in the Metro-East/St. Louis ozone nonattainment area.

In the April 17, 2000, proposed rule on the Illinois and Missouri ozone attainment demonstrations, the EPA proposed to approve the attainment demonstrations, but proposed to disapprove the attainment demonstrations in the alternative if the States failed to submit a proposed NO X emission control rule for EGUs by June 2000 and final, adopted regional NO X emission control rules for EGUs by December 2000 to support the ozone attainment demonstrations. The State of Missouri submitted its state-wide EGU NO X regulations on June 29, 2000. The EPA proposed to approve these regulations on August 24, 2000 (65 FR 51564). The EPA gave final approval to these regulations on December 28, 2000 (65 FR 82285).

It should be noted that, on August 31, 2000 (65 FR 52967), the EPA proposed rulemaking for NO X controls under subpart W of part 217 of Illinois' Air Pollution Control Rules. The subpart W rule was developed by the State to comply with EPA's NO X SIP call, and will also affect sources affected by subpart V.

The IEPA submitted the draft 0.25 EGU NO X rule, Subpart V: Electric Power Generation to the EPA on October 20, 2000 and requested parallel processing. A final rule was submitted on May 8, 2001.

On October 16, 2000, the IEPA submitted the 0.25 EGU NO X rule to the Illinois Pollution Control Board (IPCB) for the purposes of adoption by the State. The Final Opinion and Order in the Illinois regulatory proceeding was adopted by the Illinois Pollution Control Board (IPCB) on April 5, 2001. It became effective on April 17, 2001, when it was filed with the Illinois Secretary of State. It was published in the Illinois Register on May 4, 2001 at 25 Ill. Reg. 5914. The IPCB held public hearings on this rule on November 28, 2000 and December 14, 2000.

The rule reviewed here constitutes subpart V (Electric Power Generation) of part 217 of Illinois' Air Pollution Control Rules. (It should be noted that, on August 31, 2000 (65 FR 52967), the EPA proposed rulemaking for NO X controls under subpart W: NO X Trading Program for Electrical Generating Units of part 217 of Illinois' Air Pollution Control Rules (subpart W). The Subpart W rule was developed by the State to comply with EPA's NO X SIP call, and will also affect sources affected by subpart V. As noted above, the subpart V rule is designed to achieve emission controls consistent with Illinois' and Missouri's ozone attainment demonstration for the Metro-East/St. Louis ozone nonattainment area.) This final rule on the subpart V NO X control rule must be viewed as being independent of the NO X SIP call-related rulemakings. In no way is the subpart V rule intended by the State to comply with the requirements of EPA's NO X SIP call.

The following summarizes various aspects of the subpart V rule.

Section 217.700 of the rule states that the subpart V rule would control the emissions of NO X from EGUs throughout the State of Illinois during the ozone control period of May 1 through September 30 each year beginning in 2003.

Section 217.704 of the rule defines the fossil fuel-fired stationary boilers, combustion turbines, and combined cycle systems to be considered as EGUs and subject to the subpart V rule. The subject units are defined to be one of the following:

(1) Any unit serving a generator that has a nameplate capacity greater than 25 megawatts of electrical output (25 MWe) and produces electricity for sale, excluding units listed in appendix D of part 217 of the State's air pollution control rule; or

(2) Any unit with a maximum design heat input that is greater than 250 MMBtu per hour that commences operation on or after January 1, 1999, serving at any time a generator that has a nameplate capacity of 25 MWe or less and has the potential to use more than 50 percent of the potential electrical output capacity of the unit. Fifty (50) percent of a unit's potential electrical output capacity shall be determined by multiplying the unit's maximum design heat input by 0.0488 MWe per MMBtu.

Section 217.706 of the subpart V rule specifies the NO X emission limitations for the affected sources. Following the compliance deadline (see item 4 below), the NO X emissions from affected sources are limited to 0.25 pounds of NO X per MMBtu of actual heat input during each control period (May 1 through September 30), based on a control period average for each unit. Any EGU subject to more stringent NO X emission limitations pursuant to any State or Federal statute, including the State's Clean Air Act, and the Federal Clean Air Act must comply with both the requirements of subpart V and the more stringent limitations.

The affected sources must meet the emission limitation requirement of this rule through compliance with the emission limit at the sources themselves or, for certain specified sources, may meet the emission limitation requirement through inter-source averaging between various EGUs.

Direct compliance (compliance through the use of emission controls at the EGUs themselves and not through inter-EGU emissions averaging) with the emission limitation would probably entail the use of combustion process modifications, fuel substitutions, or catalytic or non-catalytic reduction technology. (The rule reviewed here does not specify the control techniques to be used, but these are generally the NO X control techniques employed for EGUs to achieve this emission rate limit.) Direct compliance does include averaging of emission rates at the sources over each control period (May 1 through September 30).

Section 217.708 of the rule specifies the approach and requirements for emissions averaging between specific EGUs within the State of Illinois. Participation in the inter-source (inter-EGU) averaging approach is at the discretion of the source owners or operators themselves. For purposes of compliance with the NO X SIP call, the State of Illinois is establishing a NO X emissions trading program. Sources eligible to participate in this program have been specified in appendix F of part 217 of the Illinois air pollution control rule. These sources may participate in inter-source emissions averaging under the subpart V rule. The owner or operator of Soyland Power (an EGU not listed in appendix F) may also choose to comply with subpart V through the inter-source averaging program for any unit at Soyland Power that commenced commercial operation on or before January 1, 2000.

Section 217.708 of subpart V specifies the equation governing the averaging of emissions for units participating in the inter-source averaging program. Compliance through this emissions averaging program must be demonstrated for each EGU by November 30 following each control period beginning in 2003. Averaging of emissions under this rule section must be authorized through federally enforceable permit conditions for each EGU. If inter-source averaging is used to demonstrate compliance with the Subpart V requirements, failure to demonstrate such compliance collectively by all EGUs involved in the inter-source averaging shall result in the subject EGUs each being judged using the 0.25 pounds NO X per MMBtu of heat input emission limit averaged for each EGU over the emission control period. Only the non-complying EGUs, individually based on this NO X emission limit, will be the subject of subsequent enforcement and other EGUs involved in the inter-source averaging shall not be held as responsible for the compliance failure based on the inter-source averaging.

All affected sources are subject to the requirements of Subpart V on and after May 1, 2003.

Section 217.710 of the rule specifies the monitoring requirements for affected sources. The owner or operator of an affected source must install, calibrate, maintain, and operate continuous emission monitoring systems for NO X that meet the requirements of 40 CFR part 75, subpart B. The owner or operator of a gas-fired peaking unit or an oil-fired peaking unit, as defined in 40 CFR 72.2 may determine NO X emissions in accordance with the emission estimation protocol of 40 CFR part 75, subpart E.

Section 217.712 of the rule specifies the reporting and recordkeeping requirements for affected sources. The owners or operators of affected sources must comply with the recordkeeping and reporting requirements of 40 CFR part 75 applicable to NO X emissions during the control period.

For sources (owners or operators of subject EGUs) directly complying with the requirements of Subpart V (not complying through inter-source averaging), a report must be submitted to the IEPA by November 30 of each year beginning in 2003 demonstrating that the NO X emissions from the EGUs have not exceeded the NO X emission limit (0.25 pounds NO X per MMBtu of heat input) during the control period based on control period emission rate averages.

For owners or operators of sources choosing to comply through inter-source averaging, by November 30 of each year beginning in 2003, the owners or operators must submit to the IEPA a report that demonstrates or specifies:

(1) For all EGUs participating in the averaging program, the averaged control period NO X emission rate pursuant to the emission rate averaging equation in section 217.708(b) of subpart V;

(2) The control period average NO X emission rate of each EGU participating in the averaging program; and

(3) The information required to determine the average NO X emission rate pursuant to the emission rate averaging equation.

All records and supporting data needed to demonstrate compliance must be kept and maintained by the owners or operators of the subject EGUs for five years. These records and supporting data must be made available for inspection or copying upon the request of the IEPA or the EPA. Requested data and records must also be supplied to the IEPA within 30 days of their written request by the IEPA.

The Illinois Pollution Control Board (IPCB) held public hearings on this rule on November 28, 2000 and December 19, 2000. A public hearing on this rule also occurred on February 27, 2001. The written transcripts of these hearings were submitted to EPA before the submittal of the finally adopted rule on May 8, 2001.

This rule is a critical element in the State's plan to attain the ozone standard in the Metro-East/St. Louis nonattainment area. As part of the modeled emissions control strategy considered in ozone modeling for this area, Missouri and Illinois included NO X emission reductions for certain sources throughout the two States. Full approval of the ozone attainment demonstration SIPs (Illinois and Missouri) for this area are dependent upon the adoption of regional NO X emissions control rule sufficient to achieve attainment of the ozone standard. (EPA's first proposed rule for the ozone attainment demonstrations was published on April 17, 2000 (65 FR 20404). A supplemental proposed rule was published on April 3, 2001 (66 FR 17647). These proposals include a detailed discussion of the role of regional NO X emission reductions in attainment of the ozone standard in the Metro-East/St. Louis area.) The NO X emission limit established in the NO X rule for Illinois reviewed here is consistent with the attainment year EGU NO X emission rate modeled in the ozone attainment demonstrations.

Besides setting emission limits low enough to support the ozone demonstration attainment, the rule must also meet other criteria before it can be approved as part of the SIP. To be approved by the EPA, the rule must also be permanent and enforceable. To be enforceable, the rule must: (1) Have a defined compliance deadline (this deadline must also require the implementation of the rule to occur in sufficient time to provide for the attainment of the standard by the attainment deadline); (2) have adequate record keeping and reporting requirements sufficient to allow a determination of compliance; (3) specify appropriate compliance methods; and (4) provide for or not circumvent EPA enforcement of the rule.

EPA's review of the State rule addressed in the April 3, 2001 (64 FR 17642) proposed rule and this final rule shows that the Illinois rule meets these criteria. The compliance requirements (albeit not the specific emission control systems) are specified in the rule. The compliance date is specified and is compatible with the standard attainment date specified in the State's ozone attainment demonstration. The record keeping and reporting requirements are specified and are acceptable. The EPA is not prevented from enforcing the rule. In fact, the emission trading portion of the rule specifically requires federally enforceable permits for the sources involved in the trading. Finally, the rule is permanent. Although the rule will eventually be supplemented by the requirements of the State's NO X SIP under EPA's NO X SIP call, the 0.25 pounds NO X /MMBtu rule will remain in place, assuring the permanence of the rule.

Based on all factors considered above, it is concluded that this regulation is approvable.

The EPA proposed to approve, through parallel processing, a draft statewide rule to control the emissions of NO X from EGUs in support of the ozone attainment demonstration for the Metro-East/St. Louis ozone nonattainment area.

Two public comments were received in response to EPA's April 3, 2001 (64 FR 17641) proposed rule. One was from the State of Illinois, the second from the electric utility providing electricity in the St. Louis area. Both commentors supported EPA's proposed approval and discussed how stakeholders had worked to improve air quality in the St. Louis area.

In consideration of the public comments received on the proposed rule and the fact that the finally adopted State rule was not changed during final adoption in some way that would make it unacceptable to EPA, EPA approves the incorporation of the Illinois rule to control oxides of nitrogen from electric generating units into the Illinois SIP. The specific rule being approved is Title 35: Environmental Protection; Subtitle B: Air Pollution; Chapter I: Pollution Control Board; Subchapter C: Emission Standards and Limitations for Stationary Sources; Part 217 Nitrogen Oxides Emissions; Subpart V: Electric Power Generation; Adopted at 25 Ill. Reg. 5914, effective April 17, 2001.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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.).

EPA Regions, as well as States, Territories and Tribes authorized to implement the National Pollutant Discharge Elimination System (NPDES) program, issue permits that comply with the technology-based and water quality-based requirements of the Clean Water Act. In doing so, the NPDES permitting authority, including authorized States, Territories, and Tribes, make a number of discretionary choices associated with permit writing, including the selection of pollutants to be measured and, in many cases, limited in permits. If EPA has “approved” standardized testing procedures (i.e., promulgated through rulemaking) for a given pollutant, the NPDES permit must include one of the approved testing procedures or an approved alternate test procedure. Regulatory entities may, at their discretion, require use of this method in their permits. Therefore, entities with NPDES permits could be affected by the standardization of testing procedures in this rulemaking, because NPDES permits may incorporate the testing procedure in today's rulemaking. In addition, when a State, Territory, or authorized Tribe provides certification of Federal licenses under Clean Water Act section 401, States, Territories and Tribes are directed to use the standardized testing procedures. Categories and entities that may ultimately be affected include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because today's rule merely corrects the text of a promulgated test method to reflect the Agency's intentions at the time it originally published the rule. Omissions to EPA Method 1631, Revision B, were brought to the Agency's attention by the members of the public after the test method was promulgated. The revisions to the test method clarify the use and reporting of field blanks, and are consistent with the discussion in the preamble to the final rule. In addition, this rule corrects a typographical error at 40 CFR Part 136.3(b). The CFR contains two references with the same number [(b)(40)]. The second reference (40) in Section 136.3(b) has been renumbered (41) and reference (41) has been renumbered (42). The revisions to the test method and the CFR are not substantive. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

EPA promulgates analytical methods for pollutants under Clean Water Act programs at 40 CFR Part 136. In most cases, EPA has approved use of more than one analytical method for measurement of particular pollutants, and laboratories may use any approved test method for determining compliance with applicable requirements. From time to time, EPA amends 40 CFR Part 136 to approve new test methods or modifications to approved test methods. For new test methods or for substantive changes to approved test methods, EPA first publishes a notice for public comment and reviews any public comments received prior to making a final decision on approval.

EPA proposed Method 1631: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry on May 26, 1998 (63 FR 28867), and then, after revisions following public comment, EPA promulgated Method 1631, Revision B on June 8, 1999 (64 FR 30417). On October 19, 2000, EPA entered into a Settlement Agreement to resolve litigation over the final rule in Alliance of Automobile Manufacturers, et al. v. EPA, No. 99-1420 (D.C. Cir.).

Under the Settlement Agreement, the Agency agreed to revise sections 12.4.2 and 9.4.3.3 of the test method to clarify the use of field blank subtraction (section 12.4.2) and the use of multiple field blanks (section 9.3.3.3) to determine whether test samples should be used for compliance monitoring purposes. At the time EPA published the challenged rulemaking, the Agency had intended to incorporate these changes into the rule, as reflected by the preamble and the comment-response document in the public record. The version of Method 1631 promulgated today now incorporates these technical corrections. No other changes are being made to the text of the referenced test protocol.

EPA will take actions to implement other provisions of the Settlement Agreement separately. For example, EPA agreed to propose additional clean techniques and quality control requirements for EPA Method 1631 in a Federal Register notice that is scheduled for signature by September 15, 2001. Today's action only addresses the use and reporting of field blank results.

Today's rule contains only minor technical corrections to EPA Method 1631, Revision B and provides a revised version reflecting these technical corrections. As required by the Office of the Federal Register, EPA submitted a revised version of the test method to the Director of the Federal Register for approval for incorporation by reference. The revised version submitted to the Director is EPA Method 1631, Revision C. In today's rule, the full reference to the test method in 40 CFR 136.3(b)(40) is being amended to reflect the updated test method (i.e., Revision C).

By today's action, EPA has revised the following sections of EPA Method 1631:

A. Section 9.4.3.3: This text is revised to clarify that, if sufficient multiple field blanks (a minimum of three) are collected, and the average concentration (of the multiple field blanks) plus two standard deviations is equal to or greater than the regulatory compliance limit or equal to or greater than one-half of the level in the associated test sample, results for associated test samples may be the result of contamination and may not be reported or otherwise used for regulatory compliance purposes.

B. Section 12.4.2: This text has been revised to clarify that results for mercury in samples, reagent blanks and field blanks must be reported separately. In addition, if blank correction is requested or required by a regulatory authority or in a permit, the concentration of mercury in the reagent blank or the field blank is subtracted from the concentration of mercury in the sample to obtain the net sample mercury concentration.

Based on the preamble text for the June 8, 1999, final rule and the response to comments document that supports the final rule, it is apparent that the Agency intended to allow for field blank subtraction and for not using test sample results for regulatory compliance if multiple field blanks do not meet the specifications at 9.4.3.3. This correction does not add any new requirements to the regulated community. To the contrary, it provides additional flexibility by allowing the use of field blank subtraction and by not requiring the reporting of test samples that may be contaminated based on results from field blank analyses. The rest of EPA Method 1631 is unchanged from the previously promulgated EPA Method 1631, Revision B.

This technical correction action does not involve technical standards; 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. 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. ). EPA's compliance with these statutes and Executive Orders or their predecessors for the underlying rule is discussed in the June 8, 1999 Federal Register notice (64 FR 30417).

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 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of July 18, 2001. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

USEPA, 2001. Method 1631, Revision C: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry. March 2001. U.S. Environmental Protection Agency, Engineering and Analysis Division, Office of Science and Technology, Washington, DC. EPA-821/R-01/024.

The full text of Method 1631, Revision C incorporated by reference in today's rulemaking will be available to the general public from the following sources:

Water Docket: Paper version of the method, along with the public record for this rule and the Method 1631 final rule, are available for review under docket number W-98-15 at the U.S. Environmental Protection Agency, Water Docket, 401 M Street SW., Washington, DC 20460. For access to these materials, call 202-260-3027 on Monday through Friday, excluding Federal holidays, between 9:00 a.m. and 3:30 p.m. Eastern Time for an appointment.

Internet: This Federal Register rule also is available on the Internet at: http://www.epa.gov/fedrgstr. An electronic version of Method 1631, Revision C is available via the Internet at http://www.epa.gov/OST.

National Technical Information Service (NTIS): Electronic or paper version of Method 1631, Revision C (NTIS Publication No. PB2001-102796) is available from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, by phone at 1-703/487-4650, fax at 1-703/321-8547, or via the Internet at http://www.ntis.gov.

In the July 3, 2000 final rule entitled, “Medicare Program; Prospective Payment System for Home Health Agencies,” (65 FR 41128), Federal Register Docket Number 00-16432, there were several technical errors. We transposed a number in a code included in the list of non-routine medical supplies that have a duplicate Part B code that could have been unbundled and billed under Part B before implementation of the prospective payment system (PPS). The code we listed is “A4454—Tape all types all sizes” but should be “A4554—Disposable underpads”. In addition, we inadvertently left out a code for “A6248—Hydrogel drg gel filler” that should be added to the list.

We also noted a list of codes that should be deleted from the list. This list included codes “K0137—Skin barrier liquid per oz”, “K0138—Skin barrier paste per oz”, and “K0139—Skin barrier powder per oz”. These codes were inadvertently retained on the final list and should have been deleted in the final rule.

We inadvertently used the word “start” instead of the word “end” in the last complete sentence in the second paragraph on page 41165.

We are correcting the table in the middle of page 41168 to remove the asterisks each time they appear (seven times), as well as the corresponding reference below the chart because in some instances the selection of N/A at M0825 would be valid for a Medicare patient. For example, a patient returning to home health care after an inpatient stay may not warrant a significant change in condition (SCIC) adjustment. In this case, the response to item M0825 would be N/A.

We are revising Table 4A, “Wage Index for Rural Areas—FY 2000 Pre-Floor and Pre-Reclassified” and Table 4B, “Wage Index for Urban Areas—FY 2000 Pre-Floor and Pre-Reclassified,” to account for several technical and typographical errors.

We are correcting a typographical error in a footnote under the last table on page 41184.

In Table 7, “Home Health Resource Group Case-Mix Classification Decision Tree Logic,” we are correcting a typographical error to an OASIS item number, and we are adding the OASIS item number that was inadvertently not noted in the final rule.

In the final rule, we added § 411.15(q), which superseded an already existing § 411.15(q). To correct this, we are redesignating § 411.15(q) to § 411.15(r) and republishing § 411.15(q) as it existed before the publication of the final rule.

We are making technical corrections to the following sections of the regulations to include additional conforming changes that were inadvertently not included in the July 3, 2000 final rule: §§ 484.14, 484.36, and 484.52.

In FR Doc. 00-16432 of July 3, 2000 (65 FR 41128), we are making the following corrections:

1. On page 41138, in column one, in line 25 from the top of the page, the code “A4454—Tape all types all sizes” is removed.

2. On page 41138, the following codes are added to the list for non-routine medical supplies that have a duplicate Part B code that could have been unbundled and billed under Part B before implementation of PPS:

(a) In column one, the code “A4554—Disposable underpads” is inserted after “A4481—Tracheostoma filter” and before “A4622—Tracheostomy or larngectomy”.

(b) In column two, the code “A6248—Hydrogel drg gel filler” is inserted after code “A6247—Hydrogel drg > 48 sq in w/b” and before code “A6251—Absorpt drg < = 16 sq in w/o b”.

3. On page 41138, in column two, lines 21, 22, and 23 from the bottom of the page, the following codes are removed: “K0137—Skin barrier liquid per oz”, “K0138—Skin barrier paste per oz”, and “K0139—Skin barrier powder per oz”.

4. On page 41165, at the bottom of column two, the phrase in the last complete sentence of the paragraph beginning on the fifth line from the bottom of the page is revised to read “then the MSA or non-MSA at the end of the episode governs the labor adjustment * * *”

5. On page 41168, in the chart in the center of the page, the asterisks are removed each time they appear (seven times), including the corresponding reference below the chart.

6. On page 41173, in Table 4A, the entry for Guam of 0.7268 under “Wage Index” is revised to read 0.9611.

7. On page 41173, in Table 4A, the entry for the Virgin Islands of 0.6389 under “Wage Index” is revised to read 0.6306.

8. On page 41174 and continuing through page 41179, in Table 4B, “Wage Index For Urban Areas—FY 2000 Pre-Floor and Pre-Reclassified,” the entries for the urban areas listed below are revised to read as follows:

9. On page 41184, under the last table titled “Calculation for the Part B Therapies,” in the footnote beneath the table, “57 CPT therapy codes” is revised to read “54 CPT therapy codes”.

10. On page 41194, in Table 7, “Home Health Resource Group Case-Mix Classification Decision Tree Logic,” under the heading “Service utilization domain”, in the first column titled “Variable”, “M0170” is revised to read “M0175” in both instances. Also in that column, “M0825—” is added before “Receipt of Therapy”.

11. On page 41205, in column one, beginning at line 30 from the top of the page, in the section heading and in the paragraph below it, “411.15(q)” is revised to read “411.15(r)”.

This is a summary of the Commission's Sixth Memorandum Opinion and Order (Sixth MO&O) in WT Docket 92-225 released May 25, 2001. The complete text of this Sixth MO&O is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC 20554; and also is available from the Commission's copying contractor, International Transcription Services (ITS, Inc.) Courtyard Level, 445 12th Street, SW., Washington, DC 20554. The Sixth MO&O addressed two petitions for reconsideration directed to 47 CFR § 90.261 as amended in the Fifth Memorandum Opinion and Order 66 FR 8899 2/5/01.

1. In substantially identical petitions for reconsideration, the Alarm Industry Communications Committee of the Central Station Alarm Association (AICC) and Blooston, Mordkofsky, Dickens, Duffy and Prendergrast (Blooston) sought clarification concerning whether 47 CFR 90.261(a) could be construed to render Central Station Alarm stations as fixed, and hence secondary, facilities.

2. Because both petitioners' petitions were based on a June 26, 2000, letter from the Public Safety and Private Wireless Division, and because more than 30 days had elapsed thereafter, the petitions were dismissed as untimely pursuant to 47 CFR 1.5 and 1.429. However, the Commission treated the petitions as requests for interpretation of 47 CFR 90.261 and held that that rule did not operate to classify Central Station Alarm stations as fixed, secondary facilities.

The commercial penaeid shrimp fishery in the South Atlantic region is managed under the FMP. The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The FMP and implementing regulations at 50 CFR 622.35 (d) provide the procedures, criteria, and authority for a concurrent closure of the EEZ adjacent to those South Atlantic states that have closed their waters to the harvest of brown, pink, and white shrimp to protect the white shrimp spawning stock if it has been severely depleted by cold weather. Consistent with those procedures and criteria, the States of Georgia and South Carolina closed their waters to the harvest of brown, pink, and white shrimp and requested that the Council recommend that NMFS implement a concurrent closure of the EEZ off Georgia and South Carolina. The Council approved the States′ requests and in turn requested that NMFS concurrently close the EEZ off Georgia and South Carolina to the harvest of brown, pink, and white shrimp. NMFS determined that the recommended closure conformed with the procedures and criteria specified in the FMP and implementing regulations, the Magnuson-Stevens Act, and other applicable law. NMFS implemented the closure effective March 13, 2001 (66 FR 15357, March 19, 2001).

During the closure, no person could: (1) Trawl for brown, pink, or white shrimp in the EEZ off Georgia or South Carolina; (2) possess on board a fishing vessel brown, pink, or white shrimp in or from the EEZ off Georgia or South Carolina unless the vessel is in transit through the area and all nets with a mesh size of less than 4 inches (10.2 cm) are stowed below deck; or (3) use or have on board a vessel trawling in that part of the EEZ off Georgia or South Carolina that is within 25 nautical miles of the baseline from which the territorial sea is measured a trawl net with a mesh size less than 4 inches (10.2 cm).

The FMP and implementing regulations at 50 CFR 622.35 (d) state that: (1) The closure will be effective until the ending dates of the closures in the respective states' waters, but may be ended earlier based on the states' request; and (2) if the EEZ closure is ended earlier, NMFS will terminate the closure of the EEZ by filing a notification to that effect with the Office of the Federal Register. Based on biological sampling, the States of Georgia and South Carolina have determined that their respective State's waters will remain closed until sometime after June 16, 2001; however, they have requested the EEZ adjacent to their State's waters be opened effective 12:01 a.m. on June 16, 2001. Therefore, consistent with the procedures in the FMP and its implementing regulations, NMFS publishes this notification to reopen the EEZ off Georgia and South Carolina to the harvest of brown, pink, and white shrimp effective 12:01 a.m., eastern daylight savings time, June 16, 2001.