A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-100 and -200 series airplanes was published in the Federal Register on April 19, 2001 (66 FR 20114). That action proposed to require repetitive inspections for cracking of the station 800 frame assembly, and repair, if necessary.

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.

There are approximately 258 airplanes of the affected design in the worldwide fleet. The FAA estimates that 139 airplanes of U.S. registry will be affected by this AD, that it will take up to 14 work hours per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be as much as $116,760, or $840 per airplane, per inspection cycle.

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) by superseding AD 96-26-04, amendment 39-9867 (61 FR 69026, December 31, 1996), which is applicable to certain Boeing Model 747 series airplanes, was published in the Federal Register on March 14, 2001 (66 FR 14867). The action proposed to continue to require inspections to detect fatigue cracking of the vertical beam webs and chords of the nose wheel well and of the inner chord and web of the fuselage frames at body station (BS) 300 and BS 320, and repair, if necessary. The action also proposed to expand the applicability of the existing AD to include additional airplanes, and add new requirements for repetitive inspections to detect fatigue cracking of the nose wheel well vertical beam webs and frames from BS 260 to BS 320, and follow-on actions, if necessary, which would end currently required inspections for airplanes subject to them. The action also provides terminating action for the new repetitive inspections.

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

Table 3 of the proposed AD contains the compliance schedule for accomplishment of the inspections in paragraph (c) of the proposed AD for previously inspected airplanes subject to Procedure 3, 4, or 6 of Boeing Alert Service Bulletin 747-53A2293, Revision 8, dated July 13, 2000. The commenter requests that the FAA revise the column in Table 3 that contains the compliance time for the initial inspection of the proposed AD. The commenter asks that the column headings specifically identify Boeing Service Bulletin, Revision 7, dated March 13, 1997, as the correct source for the definitions of Options 1 and 2 as specified in those columns. The commenter believes that the FAA intended to reference Revision 7 of the service bulletin in this case because that is the revision being used by most operators.

The FAA partially concurs with the commenter's request. We find that it's necessary to revise Table 3 in this final rule, but the commenter's suggested remedy does not fully address the issue because operators could possibly be using issues of the service bulletin other than Revision 7. Furthermore, we have determined that the definitions of Option 1 and Option 2 have varied between revisions of the service bulletin. Therefore, we find it necessary to cite the original issue and Revisions 1 through 7 of the service bulletin, as well as to remove the references to Options 1 and 2 entirely, and instead specify the method of inspections included in those options. Table 3 of this final rule has been revised accordingly.

The commenter requests that the FAA extend the compliance time in paragraph (f) of the proposed AD for airplanes on which cracking was repaired prior to the effective date of this AD according to paragraph (a)(2) of the proposed AD. The commenter states that, if these airplanes have not been inspected per paragraph (a) of the proposed AD within the last 100 flight cycles before the effective date of this AD, the airplanes must be inspected per paragraph (c) of the proposed AD within 100 flight cycles after the effective date of this AD. The commenter states that if these same airplanes had not been repaired per paragraph (a)(2) of the proposed AD, they would have been allowed to wait until 500 flight cycles after the effective date of this AD to do the inspections in paragraph (c). The commenter states that its experience in the subject area shows that repairs per paragraph (a)(2) of the proposed AD should be significantly larger and stronger than published repairs per the Boeing 747 Structural Repair Manual, which should eliminate the need for these airplanes to be inspected within 100 flight cycles after the effective date of this AD.

The FAA concurs with the intent of the commenter's request, though not with its rationale. We do not concur that an airplane not repaired per paragraph (a)(2) of this AD would have a compliance time of 500 flight cycles after the effective date of this AD. An unrepaired airplane would be subject to a compliance time of 100 or 500 flight cycles SINCE LAST INSPECTION (not since the effective date of this AD), depending on the method used for the last inspection.

As explained in the preamble of the proposed AD, we intend paragraph (f) to apply to airplanes that may not have been inspected following repairs. Certain airplanes could have been repaired as early as 1997, with no inspections having been accomplished since that time. The compliance time of 100 flight cycles after the effective date of this AD in paragraph (f) of this AD ensures that all of these airplanes will be inspected promptly.

However, the FAA does concur that paragraph (f) of the proposed AD could require certain airplanes—i.e., those inspected by internal detailed visual inspection and high frequency eddy current (HFEC) inspection, which allows a 1,500-flight-cycle repeat interval—to be inspected unnecessarily within 100 flight cycles after the effective date of this AD. Therefore, the FAA has revised paragraph (f) of this final rule to provide an extended compliance time of 500 flight cycles after the effective date of this AD for airplanes on which an internal detailed visual and HFEC inspection has been done according to Boeing Service Bulletin 747-53-2293 within the last 1,500 flight cycles before the effective date of this AD.

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

There are approximately 562 Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 179 airplanes of U.S. registry will be affected by this AD.

For affected airplanes, the inspections that are currently required by AD 96-26-04 take approximately 24 work hours per airplane, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates the cost impact of the currently required actions to be $1,440 per affected airplane, per inspection cycle.

The new inspections that are required in this AD will take approximately 4 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates the cost impact of these new actions on U.S. operators to be $42,960, or $240 per airplane, per inspection cycle.

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

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

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

The FAA has noted a growing number of take-off (T/O) surge events in Pratt and Whitney PW4000 Series turbofan engines. These surges typically occur within 60 seconds after throttle advance to T/O power, a critical phase of flight. These events have resulted in numerous aborted T/O's, in-flight engine shutdowns, and diverted flights. A surge of this kind on a single engine of a multi-engine airplane would not normally result in an unsafe condition. To date, two dual-engine surge events have occurred, the latest in March 2001 involving a twin-engine aircraft.

The investigation into these events has revealed no special causes for these surges. The FAA believes that a low-stall margin results from open clearances in the aft stages of the HPC. The worst-case open clearance condition in the aft stage compressor of the HPC occurs about 60 seconds after the throttle is advanced for T/O. A binding of the compressor flowpath and stator segments within the outer case (causing out-of-round flowpath or local open clearances) adds to this normally worst-case condition. Pratt and Whitney has initiated a root-cause analysis program to verify this belief, and to identify other contributing factors that may contribute to the high rate of takeoff surges in the PW4000 fleet.

On October 25, 2000, the FAA issued AD 2000-22-01 (65 FR 63793, dated October 25, 2000), applicable to PW4000 series engines, to require limiting the number of engines with the HPC CBS configuration, which are used on Boeing 747, Boeing 767, and McDonnell Douglas MD-11 series airplanes, to one on each airplane according to the cyclic limits specified in that AD. AD 2000-22-01 also prohibits using engines with HPC modules that incorporated the HPC CBS configuration, after the effective date of that AD.

On April 20, 2001, the FAA issued AD 2001-09-07 (66 FR 21083, dated April 27, 2001), applicable to PW4000 series turbofan engines, to require limiting the number of PW4000 engines to no more than one engine with potentially reduced stability on each airplane and removal of certain PW4000 engines before exceeding cyclic limits that are determined by airplane model. Those engines with potentially reduced stability are listed by serial number in the AD. AD 2001-09-07 superseded emergency AD 2001-08-52. AD 2001-09-07 also requires the removal of certain PW4000 engines that have an HPC with 1,500 or more CSO greater than the high pressure turbine (HPT) CSO, and establishes a minimum rebuild standard for engines that are returned to service.

Since AD 2000-22-01 and AD 2001-09-07 were issued, the FAA has reevaluated those requirements and found that the requirements of those AD's were not sufficient to meet the original safety intent of those AD's. The PW4000 fleet was evaluated by configuration, installation, thrust rating and other variables to determine which subpopulations are most prone to high power takeoff surges. This information was then evaluated to create cyclic limits for each airplane and engine combination to maintain the risk of a multiple-engine dual surge risk at an acceptable level. Cyclic limits were then developed for the HPC to reduce the single engine surge rate.

Since the unsafe condition described is likely to exist or develop on other PW4000 series turbofan engines of the same type design, this AD is being issued to prevent multiple-engine power losses due to HPC surge and to reduce the rate of single-engine surge events. This AD requires:

• Limiting the number of engines with the HPC CBS configuration to one on each airplane within 100 cycles-in-service (CIS) after the effective date of this AD, AND

• Limiting the number of PW4000 engines with potentially reduced stability on each airplane, based upon airplane and engine configuration, within 50 CIS after the effective date of this AD, AND

• Removing certain PW4000 engines from service, before exceeding cyclic limits on the HPC based on CSO, within 50 CIS after the effective date of this AD, AND

• Preventing the build-up of PW4000 engines that have an HPC with 1,500 or more CSO greater than the HPT CSO, AND

• A minimum rebuild standard for engines that are returned to service.

The actions specified in this AD are considered interim action and further action is anticipated based on the continuing investigation of the HPC surges. This AD has been coordinated with the FAA Transport Aircraft Directorate.

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-47-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Under the law in effect prior to the enactment of Pub. L. 105-306 on October 28, 1998, if an individual received an SSI overpayment and failed to refund the full overpayment amount, SSA was authorized to recover the overpayment by adjusting future SSI payments due the recipient or his or her eligible spouse. If the overpaid person was not receiving SSI payments but was entitled to benefits under title II of the Act, he or she generally could elect voluntarily to have the overpayment recovered by adjusting the title II benefits. If an overpaid individual was no longer entitled to SSI payments, we could refer the overpayment to the Department of the Treasury for offset against any Federal tax refund due that individual.

Section 8 of Pub. L. 105-306 added new section 1147 to the Act, permitting SSA to use an additional collection tool to recover SSI overpayments. Under section 1147, SSA may recover SSI overpayments by adjusting the amount of any benefits payable to the overpaid individual under title II of the Act, without the consent of the individual. Throughout the remainder of this preamble, this type of overpayment recovery is referred to as “cross-program recovery.”

Section 1147 limits the use of cross-program recovery to SSI overpayments made to individuals who are not currently eligible to receive cash payments, including State supplementary payments, under title XVI or under section 212(b) of Pub. L. 93-66. Also, section 1147 limits the amount of the SSI overpayment that may be recovered in any month through cross-program recovery to 10 percent of the benefit amount payable under title II in any month, unless the overpaid person requests that SSA withhold a higher amount or unless the overpaid person or his or her spouse willfully misrepresented or concealed material information in connection with the overpayment. If there is willful misrepresentation or concealment, section 1147 permits SSA to recover the overpayment by withholding 100 percent of the title II benefit payable.

We are adding to our regulations new § 416.572 setting forth our rules on cross-program recovery. This new section:

• Defines certain terms;

• Explains the conditions for imposing cross-program recovery;

• Explains the rights of the overpaid individual to request waiver of the overpayment and review of our determination that he or she still owes us the overpayment balance; and

• Explains the rules for determining the amount to be withheld from the individual's title II benefits.

Specifically, in paragraph (a) of § 416.572, we define the following terms:

• “Cross-program recovery” is defined as the process we will use to collect SSI overpayments by adjusting title II benefits payable in a month.

• “Benefits payable in a month” is defined as the amount of title II benefits a person actually receives in a given month. Under our definition, “benefits payable in a month” includes any past due benefits a person receives, but does not include any amounts withheld from the person's benefits under the deductions or reductions listed in § 404.401(a) or (b) of our regulations. The definition also includes an example of how we determine the “benefits payable in a month.”

• “Not currently eligible for SSI cash benefits” means that a person is receiving no cash payments, including State supplementary payments, under title XVI of the Act or under section 212(b) of Pub. L. 93-66.

In paragraph (b) of § 416.572, we explain that we may use cross-program recovery to collect SSI overpayments if the overpaid person is not currently receiving SSI cash benefits and is receiving benefits under title II of the Act. Thus, if a person whose title II benefits are being adjusted to recover an SSI overpayment again becomes eligible for SSI benefits, cross-program recovery will end with the month in which SSI cash benefits resume. When SSI benefits become payable to the overpaid person, we will resume the monthly adjustment of SSI payments to collect the overpayment. We will not start cross-program recovery if the overpaid person is refunding the title XVI overpayment by regular monthly installments or we are recovering a title II overpayment by withholding that person's title II benefits.

Paragraph (c) of § 416.572 lists the information that we will include in the notice we send to a person whose title II benefits are subject to cross-program recovery. The notice informs the person that he or she owes a specific SSI overpayment balance, that we will be using cross-program recovery to collect that balance and that we will withhold a specific amount from the title II benefits. The notice will state that the person may ask us to review our determination that he or she still owes the overpayment balance. The notice will also advise the person he or she may request a waiver of the overpayment under section 1631(b)(1)(B) of the Act and explain the circumstances under which we will waive the overpayment. The notice will inform the individual how to request a waiver. Unless the overpaid person or that person's spouse willfully misrepresented or concealed material information in connection with the overpayment, the notice will also state that the person may request that we withhold from the title II benefits a different amount than the amount stated in the notice.

Paragraph (d) of § 416.572 explains that we will begin to withhold no sooner than 30 days after the date of the notice. If the individual pays the entire overpayment balance within that 30-day period, we will not impose cross-program recovery. If within the 30-day period the person asks us to waive the overpayment or asks us to review the determination that he or she still owes us the overpayment balance, we will not begin cross-program recovery until we review the matter and notify the person of our decision. If within the 30-day period, the person requests that we withhold a different amount, we will not begin cross-program recovery until we determine the amount we will withhold.

Paragraph (e) of § 416.572 explains that we will generally collect the overpayment at the rate of 10 percent of the title II benefits payable in any month. However, we will collect at a different rate if the person requests, and we approve, a different rate of withholding or if the overpaid person (or his or her spouse) willfully misrepresented or concealed material information in connection with the overpayment. If an overpaid person requests withholding at a lesser rate than 10 percent, we will set a rate that will not deprive the individual of income required for ordinary and necessary living expenses as prescribed in § 416.571 of our regulations. If there has been willful misrepresentation or concealment of material information in connection with the overpayment, we will recover the overpayment by withholding at the rate of 100 percent of the title II benefits payable. We will not collect at a lesser rate.

We are revising § 404.401(c) to explain that we may adjust a person's title II benefits to recover an SSI overpayment using cross-program recovery.

We are revising § 416.570 to eliminate the reference to voluntary withholding of an SSI overpayment from title II benefits. Under section 1147 of the Act, we now have authority to use cross-program recovery to recover title XVI overpayments without the consent of the overpaid person.

On October 3, 2000, we published proposed rules in the Federal Register at 65 FR 58970 and provided a 60-day period for interested parties to comment. We received comments from 6 organizations. Because some of the comments received were quite detailed, we have condensed, summarized or paraphrased them in the discussion below. We address all of the significant issues raised by the commenters that are within the scope of the proposed rules. We have made revisions to the proposed rules to address some of the concerns of the commenters.

Comment: Letters from three organizations recommended that we include language in the cross-program recovery notice advising individuals of their rights to request that we waive collection of the overpayment. One of these organizations expressed concern that SSA adopt procedural protections that meet the needs of these individuals (title II beneficiaries who previously received SSI and are disabled and/or elderly) and recommended that the final version of new § 416.572(c) require inclusion of information about the availability of waiver under the procedures of 20 CFR § 416.550 in the notice. Similarly, another organization recommended that SSA change new § 416.572(c) to state that the written notice to individuals subject to cross-program recovery should include information about the availability of waiver. The third organization expressed concern that individuals likely to be affected by our new statutory authority to apply cross-program recovery may not realize that they may request waiver at any time.

Response: After careful consideration, we have decided to include language about the availability of waiver in the written notice to individuals subject to cross-program recovery. We have changed new § 416.572(c) and (d) to provide that (1) our written notice to an individual subject to cross-program recovery will explain that the individual may request waiver, and (2) if an individual requests waiver within 30 days from the date of the notice, we will not start withholding title II benefits before we review the matter and notify the individual of our decision.

Comment: Two organizations sent comments relating to the overpaid individual's right to request that we collect the SSI overpayment from title II benefits at a rate that is lower than 10 percent of the title II benefits payable in a month. One organization recommended that the final regulation state that the individual may request a withholding rate of less than 10 percent under the same criteria applicable under 20 CFR 416.571 when we adjust SSI benefits. The other organization recommended that the notice portion of the final regulation state that an individual may request a rate that is higher or lower than the 10 percent figure and state the criteria that SSA would use to determine the rate.

Response: With regard to the first recommendation, pertinent language of paragraph (e)(1)(i) of § 416.572 states that we will collect the overpayment by withholding 10 percent of title II benefits unless the overpaid person “request[s] and we approve a different rate of withholding. ” Paragraph (c)(4) of § 416.572 provides that, in most cases, the notice on proposed cross-program recovery will state that the individual “may request that we withhold a different amount * * *” Paragraph (d)(3) provides that if within 30 days from the date of the notice the individual asks us to “withhold a different amount than the amount stated in the notice, we will not begin cross-program recovery until we determine the amount we will withhold.” The plain meaning of the terms “different rate of withholding” and “different amount” in these paragraphs encompasses an amount that is lower than 10 percent of the benefit payable in a month and an amount that is higher than the 10 percent figure. Therefore, we saw no need to revise the language in these paragraphs. However, we have revised the language in paragraph (e)(2) in § 416.572 to state that we will use the criteria in § 416.571 to determine whether we will grant an individual's request that we withhold less than the 10 percent figure mentioned in the cross-program recovery notice. Under these criteria, we would consider the individual's income, resources and financial obligations. We would attempt to establish a rate of withholding that would not deprive the individual of income needed to meet ordinary and necessary living expenses.

Comment: Two organizations asserted that there are problems in the administration of our programs that cause overpayments. Among the concerns are staffing in local offices, training for our employees, and documenting and acting on reports of changes potentially affecting eligibility or benefit amounts. One organization said we should correct the problems before developing new rules for and methods of collecting the overpayments.

Response: We are not adopting the suggestion that we delay implementation of cross-program recovery. Overpayments of benefits occur for many reasons. We take our responsibility for stewardship of the programs that we administer very seriously. That is why we constantly track our payment accuracy and strive to minimize overpayments. In addition, we are pursuing several initiatives that address the causes of overpayments and other matters described by the organizations. Regardless of the reasons for overpayments, we are responsible for recovering as much of the overpaid money as possible consistent with the law.

Comment: One organization stated that SSA should delay the start of cross-program recovery until 60 days after the written notice to the individual concerning the planned benefit reduction. The organization felt that the 30-day period which SSA plans to use is not enough time for the individual to contact SSA in order to repay the debt, ask for a review, ask for a different rate of withholding or request waiver.

Response: We are not adopting the suggestion that we delay the reduction until 60 days after the written notice to the individual. We believe the 30-day period is adequate time for an individual to request review or ask for waiver or a different rate of withholding. Overpaid individuals do not have to submit all of the evidence within that 30-day period. They need only make their requests during the 30 days. After the request, they can review our records and gather and submit evidence.

SSA has been using this process for years in its efforts to collect overpayments. We believe that the process allows individuals adequate time to request review or waiver or lower withholding rates and to submit essential evidence.

Comment: One organization stated that we should include in the notice described in § 416.572(c) the same information about the overpaid amount that we include in the initial notice of overpayment. The organization states that the information should be included because it believes a person cannot adequately identify or question an overpayment without more information.

Response: After considering the organization's comment, we decided not to adopt the suggestion. The new notice described in § 416.572(c) will show the balance of the overpayment at the time we send the notice. The initial notice of overpayment previously sent to the overpaid person includes information such as the beginning balance of the overpayment, the general cause of the overpayment, and the monthly amounts received compared to the amounts that the person should have received during each month of the overpayment. We include the more detailed information in initial notices of overpayment because those notices give overpaid people the right to request appeal of the fact or amount of the overpayment. To exercise that right, overpaid people need to know specifically the overpayment amount, when they incurred the overpayment, how the overpayment was calculated, and why the overpayment occurred.

The notice described in § 416.572(c) is sent to the overpaid person after the right to appeal the fact or the original amount of the overpayment has expired. Since the person's appeal rights on these matters have expired, the detailed information about the overpayment is not required in the new notice regarding cross-program recovery. Under the new regulation, the overpaid individual would have the right to have us review whether he or she still owes all or part of the overpayment balance. For example, the individual may have evidence that he or she refunded all or part of the balance or that we previously waived collection. We believe that the new notice of cross-program recovery gives sufficient information about the overpayment for the individual to determine whether to ask for such review.

In addition, it is our long-held policy to provide the detailed information on the amount of the initial overpayment balance and the cause of the overpayment in the initial notice of overpayment. We do not repeat that information with each subsequent overpayment-related notice we send. In subsequent notices to overpaid persons, we invite them to ask for more information about the overpayment if they want to know more detail. To facilitate the process of providing more information to overpaid persons, we provide them in our subsequent notices (including the new notice described in § 416.572(c)) with a variety of contact information, such as the Agency's national toll-free telephone number and the address and telephone number of the local office that is closest to them. When overpaid persons ask for more information, we provide them with the details contained in our records, including why the overpayment occurred, when it occurred, and how we calculate the overpayment.

Comment: One organization commented that the 100 percent withholding rate should not be imposed without SSA's final determination that the debt was the result of fraud or willful misrepresentation. The organization stated that this is necessary to protect vulnerable people from unjustified penalties.

Response: In determining to collect the SSI overpayment from title II benefits without regard to the 10 percent limitation under section 1147(a)(2) of the Act, we will apply the same procedures that we apply when we collect SSI overpayments from SSI benefits under section 1631(b) of the Act. We will make an initial finding on willful concealment or misrepresentation. Then, we will send to the individual thought to be guilty of those acts written notification of our finding and our intention to withhold all of the individual's title II benefits until we collect the SSI overpayment balance. The notice will explain that the person may request a reconsideration of the initial determination. If the individual does not request reconsideration of our finding in a timely manner, the initial determination becomes our final determination and we will begin to impose the 100 percent withholding rate. If the individual requests reconsideration in a timely manner, we will not begin 100 percent withholding while we review the matter. If the individual requests reconsideration in a timely manner and we decide that our initial finding was correct, we will begin withholding at the 100 percent rate after we send the individual written notice of our reconsideration determination.

Comment: An organization urged us to include in the notice provisions of § 416.572(c) the elements required by the order issued by the Federal District Court for the Southern District of New York in the case of Ellender v. Schweiker, 575 F. Supp. 590 (1983), as modified November 21, 2000. The organization stated its view that this action was necessary to comply with the modified court order.

Response: For the reasons that follow, we are not adopting this recommendation. The court order in the Ellender case does not apply nationwide. It applies only to a narrow class comprised of individuals who meet all of the following criteria: they resided in New York State on October 26, 1982; they were entitled to title II benefits on that date; they were former SSI recipients, but not current SSI recipients, on that date. Moreover, we do not agree that the court order, as modified November 21, 2000, requires that we include in the regulation the notice elements listed in the order. The order requires that we include a statement in “instructions and directives issued by the Social Security Administration to its staff, including the Office of Hearings and Appeals”, that these elements be included in notices sent to Ellender class members regarding recovery of SSI overpayments from title II benefits. We are preparing such a statement for our instructions in the Program Operations Manual System and the Hearings, Appeals and Litigation Law Manual (HALLEX), and we believe that inclusion of the statement in those instructions is enough to satisfy the court order. We are also taking steps to ensure that cross-program recovery notices that do not contain the elements listed in the Ellender court order are not sent to Ellender class members.

Comment: One organization suggested that SSA use focus groups to ensure that the new written notice it proposes to use for cross-program recovery is understandable to individuals who receive it. The organization is concerned that the individuals will not understand the effect of the notices or their appeal rights.

Response: In developing the cross-program recovery notice, we have attempted to use, wherever possible, language that had previously been cleared within SSA and, in many cases, had already been tested using focus groups. In addition, any new language developed specifically for this notice was developed using the same notice standards (including plain-language) we use in developing all our notices. Therefore, we are not delaying implementation of cross-program recovery in order to further focus-test the language in the cross-program recovery notice.

Comment: One organization commented that SSA should include in its regulation a new section to provide notice of the right to request waiver and review (with an explanation of the difference between waiver and review) to individuals who were overpaid SSI, were subject to cross-program recovery, and who subsequently become eligible again for SSI payments.

Response: We are not adopting this recommendation. Under our current policies, we notify an individual that he or she is entitled to SSI benefits. That notice would state the amount of the benefits and explain any adjustment to the benefit amount, including adjustment to collect any outstanding overpayment balance. The notice informs the individual that he or she may appeal the determination but does not discuss waiver of collection of the overpayment.

We do not intend to add information on waiver to this type of notice. The individual would already have been notified several times about the right to request waiver. The initial notice of overpayment discusses waiver. If we select the debt for the Treasury Offset Program, we would send a pre-offset notice which explains waiver, as required by 31 U.S.C. 3720A. Under the provisions of new § 416.572(c) of the regulations, an individual who was subject to cross-program recovery would also have been given information about waiver in the new written notice about our intent to collect the SSI debt from title II benefits. We believe these multiple notifications of the right to request waiver are sufficient. If an individual does request waiver when he or she becomes eligible for SSI, we would make our determination under section 1631(b)(1) of the Social Security Act, the regulations set out in 20 CFR § § 416.550-416.556 and the procedures adopted to implement them.

Comment: One organization asserted that SSA should revise § 416.572(e) to allow individuals found guilty of willful misrepresentation or concealment of material information in connection with the overpayment to request a rate of withholding of less than 100 percent. The organization felt the person should be afforded the opportunity to prove that a 100 percent withholding would be a hardship because it would deprive him or her of ordinary and necessary living expenses.

Response: We are not adopting this suggestion. When an individual is found guilty of willful misrepresentation or concealment of material information in connection with the overpayment, section 1147(a)(2)(A) of the Social Security Act permits us to collect by withholding up to 100 percent of the benefits payable in a month until we collect the entire overpayment. We have a stewardship responsibility to ensure that the programs we administer are run efficiently and effectively, to recover overpayments and to prevent and deter fraud. Our longstanding policy is to collect debts arising from willful misrepresentation or concealment at the rate of 100 percent withholding. We believe that the 100 percent withholding is an appropriate penalty for such conduct and demonstrates to anyone who is contemplating such conduct that the consequences will be significant. In addition, we believe that allowing someone who obtains benefits through fraudulent acts to repay the debt over an extended period is not appropriate public policy.

We have consulted with the Office of Management and Budget (OMB) and determined that these final regulations meet the criteria for a significant regulatory action under Executive Order (E.O.) 12866. Thus, the regulations were reviewed by OMB. However, the estimated amounts of the savings or costs involved do not cross the threshold for an economically significant regulation as defined in E.O. 12866. The estimated program savings from increased collections as a result of implementation of section 8 of Pub. L. 105-306 are $15 million in each of fiscal years (FY) 2001 through 2003; $40 million in FY 2004; and $30 million in FY 2005 for a total increase of $115 million over 5 years. The administrative savings estimate for FYs 2001 through 2005 is less than $5 million.

We certify that these final rules will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These final regulations will impose no new reporting or recordkeeping requirements requiring OMB clearance. In fact, these final rules would decrease the paperwork burden on the public by 833 burden hours per year. This is because, under the final rules, overpaid persons will no longer complete Form SSA-730-U2 (Request To Have Supplemental Security Income Overpayment Withheld From My Social Security Benefits), OMB Control Number 0960-0549, which provides SSA with the overpaid person's request that SSA collect a title XVI overpayment from the person's title II benefits.

An electronic copy of this action may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at: http://www.nara.gov/ fedreg and the Government Printing Office's database at: http://www.access.gpo.gov/nara.

A number of editorial corrections have been identified since the 2000 Millennium Edition of the MUTCD was incorporated by reference on December 18, 2000, at 65 FR 78923. The general scope of these editorial corrections is being provided to the public in this preamble. All of the editorial corrections have been included in the MUTCD text and the corrected MUTCD text is available on the MUTCD Internet site ( http://mutcd.fhwa.dot.gov ). Furthermore, a listing of every errata item is available on this Internet site.

The FHWA believes good cause exists to publish this rule without prior notice and opportunity for public comment. In addition, the FHWA believes good cause exists for making this rule effective immediately and that seeking public comment is unnecessary. The entire MUTCD text has been through a public comment process and those comments are reflected in the current text of the MUTCD. The FHWA believes that it is important to make these errata changes available as soon as possible as motorists, pedestrians, and bicyclists depend on correct traffic control devices for safe travel on our Nation's highways.

Additionally, State and local departments of transportation use the MUTCD daily as they determine when and where to install traffic signs, traffic signals, and pavement markings. Since the MUTCD is used by all State and local departments of transportation when installing traffic signs, traffic signals, and pavement markings on all roads open to public travel, it is critical to the government agencies, other users of the MUTCD, and the traveling public that a correct document is available to ensure the safe and efficient operation on our highways. Furthermore, all of these changes are minor and are not substantive in nature. Therefore, the FHWA believes that good cause exists to make this rule effective immediately upon publication.

The FHWA discovered several errors in the MUTCD after the final rule document was published on December 18, 2000. The FHWA received many comments about these errors after publication of the final rule and after commenters viewed the MUTCD. These errors were not substantive in nature, and the FHWA has been able to correct most of them by way of “pen and ink” changes to provide text clarification and consistency, and to correct the grammatical, mathematical, and typographical errors. Examples of the errors that were corrected include misspelling of words, the removal of the comma between the month and year of a date, capitalizing the word “Nation” when it refers to the United States, the punctuation of items in lists, placing the sign number after the sign name, and before the word sign, and correcting the names of reference documents.

Additionally, in the final rule published on December 18, 2000, the FHWA indicated 288 technical changes relating to the MUTCD based on eight notices of proposed amendments and public comment. Fifteen of the technical changes indicated in the Federal Register were not correctly made in the MUTCD text. The following are those technical changes.

1. In Section 1A.05 Maintenance of Traffic Control Devices, under GUIDANCE, the first two paragraphs concerning the maintenance of traffic control devices were inadvertently left out of the MUTCD text in the final rule published on December 18, 2000, at 65 FR 78923. These two paragraphs go before the existing paragraphs. It is very important to give guidance to all jurisdictions on maintaining traffic control devices so that road users may safely use the Nation's highways. Paragraph 1 should read, “Functional maintenance of traffic control devices should be used to determine if certain devices need to be changed to meet current traffic conditions.” Paragraph 2 should read, “Physical maintenance of traffic control devices should be performed to ensure that legibility is retained, that the device is visible, and that it functions properly in relation to other traffic control devices in the vicinity.” These two paragraphs were in the notice of proposed amendment published on December 30, 1999, at 64 FR 73612, 73619.

2. In Item 12 of the final rule, published on December 18, 2000, at 65 FR 78923, in Section 1A.14 Abbreviations Used on Traffic Control Devices, the FHWA indicated that the statement “When abbreviations are needed for traffic control devices, the abbreviations shown in Table 1A-1 shall be used” shall be a STANDARD. Inadvertently, the statement was published as an OPTION in the text of the MUTCD even though it was a STANDARD in the notice of proposed amendment published on December 30, 1999, at 64 FR 73612. The text should read “STANDARD: When abbreviations are needed for traffic control devices, the abbreviations shown in Table 1A-1 shall be used.”

3. In Section 2A.15 Sign Borders, in the notice of proposed amendment, published on June 11, 1998, at 63 FR 31950, some of the GUIDANCE text was inadvertently omitted from the MUTCD text published on December 18, 2000, at 65 FR 78923. The FHWA did not intend to delete this text and did not discuss deleting it in any of the Federal Register notices. The last sentence of the GUIDANCE should read, “Where practicable, the corners of the sign should be rounded to fit the border, except for STOP signs.”

Additionally, the STANDARD text of Section 2A.15 of the notice of proposed amendment, published on June 11, 1998, at 63 FR 31950 was inadvertently modified in the MUTCD text published on in the December 18, 2000, at 65 FR 78923. The FHWA did not intend to modify this STANDARD text and did not discuss modifying it in any of the Federal Register notices. The second sentence of the STANDARD should read, “The corners of the sign shall be rounded, except for STOP signs.”

4. In Item 31 of the final rule published on December 18, 2000, at 65 FR 78923, in Section 2B.13 Night Speed Limit Sign, the OPTION sentence that reads, “A changeable message sign that changes for traffic and ambient conditions may be installed provided that the appropriate speed limit is shown at the proper times” was identified for deletion from Section 2B.13 Night Speed Limit Sign. Inadvertently, this language was not deleted from Section 2B.13 of the final MUTCD text. Therefore, this sentence has been deleted from the OPTION statement of Section 2B.13. In the incorrect text, this sentence was the second item of a two-item list. In deleting this sentence, resulting in only one item remaining in the list, the lead in phrase is superfluous and has been deleted. The statement, “A changeable message sign that changes for traffic and ambient conditions may be installed provided that the appropriate speed limit is shown at the proper times” correctly appears in the MUTCD text in Section 2B.11 Speed Limit Sign.

5. In Section 2C.21 BUMP and DIP Signs (W8-1 and W8-2) of the final rule, published on December 18, 2000, at 65 FR 78923, in the MUTCD text in the second GUIDANCE statement, the phrase, “when centerline striping is provided on a two-lane road” was inadvertently added to the MUTCD text. This phrase should be deleted from the text as the language was never proposed and was inadvertently included in the MUTCD text.

6. In Section 2C.23 Pavement Ends Sign (W8-3), in the notice of proposed amendment published on June 24, 1999, at 63 FR 33806, the FHWA proposed replacing the Pavement Ends symbol sign with a PAVEMENT ENDS word sign. Inadvertently, the final rule published on December 18, 2000, at 65 FR 78923 did not contain this change. The FHWA did not intend to omit this in the final rule. However, the MUTCD text was changed appropriately. As stated in the notice of proposed amendment published on June 24, 1999, at 64 FR 33806, the word message replaces the symbol sign and a 10-year compliance period is provided so that State and local agencies can replace their existing symbol signs with word message signs. Like the December 18, 2000, MUTCD, this change went into effect on January 17, 2001, for all new installations.

7. In Section 2C.30, Lane Ends Sign (W9-1 and W9-2), in the notice of proposed amendment published on June 24, 1999, at 64 FR 33806, the FHWA proposed changing the name of the Lane Reduction Transition Signs to Lane Ends signs. The change was made in the title of Section 2C.30 in the final rule published on December 18, 2000, at 65 FR 78923; however, the FHWA inadvertently left out the name change when referring to the W4-2 sign in the first sentence of the first OPTION paragraph in this section. This sentence now reads, “The RIGHT (LEFT) LANE ENDS (W9-1) sign may be used in advance of the LANE ENDS (W4-2) sign or the LANE ENDS MERGE LEFT (RIGHT) (W9-2) sign as additional warning or to emphasize that the traffic lane is ending and that a merging maneuver will be required.”

8. In Section 2E.28, Interchange Exit Numbering, paragraph 2 (incorrectly labeled as Section 2E.29 in the final rule published on December 18, 2000, at 65 FR 78923) the FHWA inadvertently included conflicting language as to vertical dimension of the exit number sign panel. In Item 83 of the final rule, the FHWA indicated correctly that it decided to adopt the proposed amendment to Section 2E.28, paragraph 2. The amendment proposed to increase the vertical dimension of the exit number sign panel from 600 mm (24 inches) to 750 mm (30 inches). In direct conflict to this statement, the FHWA indicated in Item 124 of the final rule that the vertical dimension of the exit number panel would not be increased from 600 mm (24 inches) to 750 mm (30 inches). Unfortunately, Item 124 was incorrectly included in the preamble language to the final rule as the FHWA's intent is to adopt the change because it improves the visibility of critical sign information for directing the road users to their destinations. The FHWA's intent to adopt this change is evidenced by the fact that the final MUTCD text reflects this decision and contained the proposed amended measurements of 750 mm (30 inches), not the previous standard of 600 mm (24 inches). The MUTCD text correctly reads 750 mm (30 inches) as the vertical dimension of the exit number sign panel.

9. In Section 2E.32, Other Supplemental Guide Signs, paragraph 2, the FHWA proposed changing a STANDARD statement, “No more than one Supplemental Guide sign shall be used on each interchange approach,” to a GUIDANCE statement in both the notice of proposed amendment, published on June 11, 1998, at 63 FR 31950, and in the final rule published on December 18, 2000, at 65 FR 78923. Inadvertently, the FHWA did not include this change from a STANDARD to a GUIDANCE in the final MUTCD text. The corrected sentence is a GUIDANCE statement reading “No more than one Supplemental Guide sign should be used on each interchange approach.” Also, the word “shall” has been changed to “should” to reflect that this is a GUIDANCE.

10. In Part 6 Temporary Traffic Control, in the final rule published on December 18, 2000, at 65 FR 78923, the FHWA indicated that in six sections of Part 6 it was changing a “SUPPORT statement to a STANDARD statement, as the statement is a definition, and definitions are by their very nature STANDARDS.” Inadvertently, this was not done in the following:

a. The first SUPPORT paragraph of Section 6C.07;

b. The first SUPPORT paragraph of Section 6E.01;

c. The first paragraph of the first SUPPORT paragraph of Section 6F.52;

d. The first SUPPORT paragraph of Section 6F.53;

e. The first paragraph of the first SUPPORT paragraph of Section 6F.55; and

f. The first paragraph of the third SUPPORT paragraph of Section 6F.76.

These SUPPORT statements are all changed to accurately reflect that they are STANDARDS.

11. In Section 6F.76 Crash Cushions, in the final rule published on December 18, 2000, at 65 FR 78923, the FHWA indicated that it was changing the seventh paragraph from a STANDARD statement to a GUIDANCE statement to provide more flexibility in the spacing of the shadow vehicle behind the workers and their work vehicles to allow for sufficient space to accomplish the required maintenance. Inadvertently, this change was not reflected in the final MUTCD text. This STANDARD statement is changed to accurately reflect that it is GUIDANCE.

12. In Section 6G.05 Work Outside of Shoulder, in the final rule published on December 18, 2000, at 65 FR 78923, the FHWA indicated that the second GUIDANCE statement would be changed to an OPTION statement. Inadvertently, this was not done in the MUTCD text. This GUIDANCE statement is changed to accurately reflect that it is an OPTION in the MUTCD text. Also, the word “should” has been changed to “may” to reflect that this is an OPTION.

13. In Section 9B.04 Bicycle Lane Signs (R3-16, R3-17), in the final rule published on December 18, 2000, at 65 FR 78923, the FHWA inadvertently included conflicting language as to the proper phase-in period for compliance with the section. In Item 245 of the final rule, the FHWA indicated that it is providing a phase-in compliance period of 5 years after the effective date of the final rule. This 5-year phase-in period is to minimize any impact on the State and local highway agencies. However, in Item 247 of the final rule, in the discussion of FHWA's intent to delete the preferential lane symbol (diamond) for bicycle signs and pavement markings, we inadvertently indicated that the phase-in period for compliance with this requirement was 6 years. This was in error. The correct phase-in period is 5 years as stated in Item 245 of the final rule.

14. In Item 253 of the final rule, published on December 18, 2000, at 65 FR 78923, in the language used to describe the change to Section 9B.15 Bicycle Crossing Warning Sign (W11-1), the FHWA used the word “requiring” when describing the use of a bicycle crossing warning sign. Specifically, the final rule stated that, “In an advance crossing situation, the FHWA is requiring using a crossing sign supplemented with an ‘AHEAD’ or ‘XX FEET’ plaque.” The use of the word “requiring” was in error as this condition is an OPTION not a STANDARD as the language implies. The FHWA's intent was to have this language read as an option as evidenced by the fact that the MUTCD text correctly states the following: “OPTION: A supplemental plaque with the legend AHEAD or XXX METERS (XXX FEET) may be used with the Bicycle Crossing Warning sign.” The use of the words “option” and “may” within the statement clearly indicate that this is not a standard, but rather an option as is the FHWA's intent.

15. In Item 257 of the final rule, published on December 18, 2000, at 65 FR 78923, in Part 9 Traffic Controls for Bicycle Facilities, the FHWA indicated that the title of Figure 9B-2 had been revised by replacing the word “typical” with “example of” and now reads, “Example of Signing for the Beginning and End of a Bicycle Route.” The change was made because the Figure 9B-2 may not be considered a “typical” drawing. Inadvertently, this was not made to the MUTCD text. The change is now added to the Figure 9B-2 of the MUTCD text.

The FHWA's issuance of this rule without prior notice and opportunity for public comment, effective immediately upon publication today in the Federal Register , is based on the good cause exceptions in 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Seeking public comment is impracticable and unnecessary.

The FHWA believes that further opportunity for public comment on these minor non-substantive changes is unnecessary because these errata changes are only minor changes and are not substantive in nature. These changes are to correct the grammatical, mathematical, and typographical errors. Additionally, the MUTCD was published on December 18, 2000, at FR 78923 after several extensive comment periods for the public to comment on each of the ten parts of the MUTCD [62 FR 54598, 62 FR 64324, 63 FR 31950, 64 FR 33802, 64 FR 33806, 64 FR 71358, 64 FR 73606, and 64 FR 73612]. Therefore, because of the minor nature of these errata changes and the previous extensive public comment period provided for each of the MUTCD sections, the FHWA believes that providing prior notice to the public is unnecessary.

For the same reasons stated above, the FHWA has determined that it has good cause to make this document effective immediately upon publication today in the Federal Register . Additionally, because the MUTCD is used by all State and local departments of transportation when installing traffic signs, traffic signals, and pavement markings on all roads open to public travel, it is very important that a correct MUTCD document is available to them immediately.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. The FHWA has determined that the economic impact of this rulemaking will be minimal. These errata changes are minor and not substantive in nature and they do not change the meaning in the final rule. The standards and guidance, which these errata affect, provide additional guidance, clarification and optional applications for traffic control devices and were effective on January 17, 2001. The FHWA believes that the uniform application of traffic control devices will greatly improve the traffic operations efficiency and roadway safety. The standards and guidance are also used to create uniformity and to enhance safety and mobility at little additional expense to public agencies or the motoring public. Therefore, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities. This action corrects the grammatical, mathematical, and typographical errors of the standards and guidance on the design and installation of traffic control devices contained in the MUTCD. It further corrects other text that was inadvertently not changed in the MUTCD text but was changed according to the final rule published on December 18, 2000, at 65 FR 78923. The FHWA hereby certifies that these revisions would not have a significant economic impact on a substantial number of small entities.

This action of correcting the grammatical, mathematical, and typographical errors would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, March 22, 1995, 109 Stat. 48). This action will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531 et seq. ).

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. This action merely corrects the grammatical, mathematical, and typographical errors of the standards and guidance on the design and installation of traffic control devices contained in the MUTCD. The FHWA has also determined that this action would not preempt any State law or regulation or affect the State's ability to discharge traditional State government functions.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. This action merely corrects the grammatical, mathematical, and typographical errors of the standards and guidance on the design and installation of traffic control devices contained in the MUTCD. Therefore, a tribal summary impact statement is not required.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain a collection of information requirement for purposes of the PRA.

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

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

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

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that it would not have any effect on the quality of the environment.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

The Transportation Equity Act for the 21st Century (TEA 21), Pub. L. 105-178, was signed into law on June 9, 1998. Section 2003 of the Act established a new incentive grant program under Section 405 of Title 23, United States Code (Section 405). Under this program, States may qualify for incentive grant funds by adopting and implementing effective programs to reduce highway deaths and injuries resulting from individuals riding unrestrained or improperly restrained in motor vehicles. The program was designed to stimulate increased seat belt, child safety seat and booster seat use.

Injuries caused by motor vehicle traffic crashes in America are a major health care problem and are the leading cause of death for people aged 5 to 35. Each year injuries caused by traffic crashes in the United States claim approximately 41,000 lives and cost Americans an estimated $150 billion. Seat belts are an effective means of reducing fatalities and serious injuries when traffic crashes occur. Seat belts are estimated to save nearly 11,000 lives each year. Lap and shoulder belts reduce the risk of fatal injury to front seat passenger car occupants by 45 percent and the risk of moderate to critical injury by 50 percent. For light truck occupants, seat belts reduce the risk of fatal injury by 60 percent and moderate to critical injury by 65 percent.

Child safety seats reduce the risk of fatal injury in a crash by 71 percent for infants (less than 1 year old) and by 54 percent for toddlers (1-4 years old). In 1999, there were 550 occupant fatalities among children under 5 years of age. Of those 550 fatalities, an estimated 291 (53 percent) were totally unrestrained. From 1975 through 1999, an estimated 4,500 lives were saved by the use of child restraints (child safety seats or adult belts). In 1999, an estimated 307 children under age 5 were saved as a result of child restraint use.

The first seat belts were installed by automobile manufacturers in the 1950s. Until the mid-1980s, seat belt use was very low—only 10 to 15 percent nationwide. From 1984 through 1987, belt use increased from 14 percent to 42 percent, as a result of the passage of seat belt use laws in 31 States. Belt use is now mandated in 49 States, the District of Columbia, Puerto Rico and the U.S. Territories (which include the Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands), but only 17 States, the District of Columbia, Puerto Rico and the U.S. Territories allow law enforcement officials to stop a vehicle solely on the basis of observing a seat belt violation. Most States require that another violation must first be observed (i.e., secondary enforcement) before seat belt law violators can be stopped and issued a citation. Under these conditions, national seat belt usage has reached its current (2000) level of 71 percent, and is increasing slowly (currently about 2 percentage points per year).

The first law requiring children to be in child safety seats was enacted in 1978 in Tennessee. By 1985, all 50 States and the District of Columbia had passed child passenger laws. Statewide reported usage rates currently range between 60 and 90 percent, depending on the age of the child. Most safety seats, however, are used improperly to some degree.

In 1997, NHTSA was directed by a Presidential Initiative to Increase Seat Belt Usage Nationwide (Presidential Initiative) to achieve a seat belt use rate of 85 percent by the year 2000 and a 90 percent seat belt use rate by 2005. The agency was further directed to reduce child occupant fatalities (0-4 years) by 15 percent in the year 2000 and by 25 percent in 2005. The national seat belt use rate reached 71 percent and the number of child occupant fatalities (0-4 years) were reduced by more than 15 percent by 1999 and by more than 17 percent by 2000. The agency continues to work toward achieving a seat belt use rate of 90 percent and reducing child occupant fatalities an additional 8 percent by 2005.

The Presidential Initiative contained a four-point strategy to meet its goals. The first point in the strategy is to build public/private partnerships to address the issue of seat belt and child safety seat use. In addition, the strategy calls for States to enact strong laws and to embrace active, high-visibility enforcement. Finally, the strategy calls for public and private partners to conduct well-coordinated, effective public education. The occupant protection incentive grant program enacted by Congress as part of TEA 21 reinforces these elements by encouraging States to adopt and strengthen seat belt use laws (including laws that provide for primary, or standard, enforcement) and child safety seat use laws, conduct high visibility enforcement, and establish education programs.

Section 405 provides that the Secretary of Transportation shall make grants to States that adopt and implement effective programs to reduce highway deaths and injuries resulting from individuals riding unrestrained or improperly restrained in motor vehicles.

On October 1, 1998, NHTSA published an interim final rule in the Federal Register to implement the Section 405 program. The interim final rule explained that, to qualify for funding under the Section 405 program, a State must adopt or demonstrate at least four of the following six criteria: a seat belt use law; a primary (standard enforcement) seat belt use law; minimum fines or penalty points against the driver license of an individual for a violation of the State's seat belt use law and for a violation of the State's child passenger protection law; a special traffic enforcement program; a child passenger protection education program; and a child passenger protection law. The interim final rule defined the elements of the grant criteria and the manner in which States must demonstrate compliance, as described below.

A State must have in effect a seat belt use law that makes unlawful throughout the State the operation of a passenger motor vehicle whenever an individual (other than a child who is secured in a child restraint system) in the front seat of the vehicle (and, beginning in fiscal year 2001, in any seat in the vehicle) does not have a seat belt properly secured about the individual's body.

A State must provide for the primary (or standard) enforcement of its seat belt use law. Under a primary enforcement law, law enforcement officials have the authority to enforce the law without, for example, the need to show that they had probable cause or had cited the offender for a violation of another offense.

A State must impose a minimum fine or provide for the imposition of penalty points against the driver's license of an individual for a violation of the seat belt use law of the State and for a violation of the child passenger protection law of the State. The interim regulations provided that the minimum fine shall mean a total monetary penalty of at least $25.00, which may include fines, fees, court costs or any other monetary assessments collected.

A State must provide for a statewide Special Traffic Enforcement Program for occupant protection that emphasizes publicity for the program. The term “Special Traffic Enforcement Program” (STEP) references a model program that NHTSA recommends for State and community implementation because it has proven to be effective in increasing seat belt use at both statewide and community levels. STEPs combine public education, publicity and intensified enforcement to increase seat belt and child safety seat use rates.

A State must plan to implement a statewide comprehensive child passenger protection education program that includes education programs about proper seating positions for children in air bag equipped motor vehicles and instruction on how to reduce the improper use of child restraint systems.

A State must have in effect a law that requires minors who are riding in a passenger motor vehicle to be properly secured in a child safety seat or other appropriate restraint system.

A more detailed discussion of the six elements described above is contained in the interim final rule (63 FR 52592-95).

The interim final rule indicated that a total of $68 million has been authorized for the Section 405 program over a period of five years, beginning in fiscal year 1999. Specifically, TEA 21 authorized $10 million for fiscal year 1999, $10 million for fiscal year 2000, $13 million for fiscal year 2001, $15 million for fiscal year 2002 and $20 million for fiscal year 2003. In fiscal year 1999, 38 States, the District of Columbia, Puerto Rico and 3 U.S. territories received grants totaling $9.5 million and, in fiscal year 2000, 38 States, the District of Columbia, Puerto Rico and 2 U.S. territories received grants totaling $9.5 million.

Under Section 405, States are required to match the grant funds they receive as follows: the Federal share cannot exceed 75 percent of the cost of implementing and enforcing the occupant protection program adopted to qualify for these funds in the first and second fiscal years the State receives funds; 50 percent in the third and fourth fiscal years it receives funds; and 25 percent in the fifth and sixth fiscal years.

No grant may be made to a State unless the State certifies that it will maintain its aggregate expenditures from all other sources for its occupant protection programs at or above the average level of such expenditures in fiscal years 1996 and 1997 (either State or federal fiscal year 1996 and 1997 can be used). As was stated in the interim final rule, the agency will accept soft matching in Section 405's administration, meaning that the State's share may be satisfied by the use of either allowable costs incurred by the State or the value of in-kind contributions applicable to the period to which the matching requirement applies.

To receive a grant in any fiscal year, the interim final rule indicated that each State is required to submit an application to NHTSA, through the appropriate NHTSA Regional Administrator, which demonstrates that the State meets the requirements of the grant being requested. In addition, the State must submit a certification. A more detailed discussion regarding the contents of the certifications is contained in the interim final rule (63 FR 52595-96).

The interim final rule indicated that in both the first and in subsequent years, once a State has been informed that it is eligible for a grant, the State must include documentation in the State's Highway Safety Plan, prepared under Section 402, that indicates how it intends to use the grant funds. The documentation must include a Program Cost Summary (HS Form 217) obligating the section 405 funds to occupant protection programs.

To be eligible for grant funds in fiscal year 1999, the interim rule provided that States had to submit their applications no later than August 1, 1999. To be eligible for grant funds in any subsequent fiscal years, States must submit their applications no later than August 1 of the fiscal year in which they are applying for funds. The agency strongly encouraged States to submit all of these materials in advance of the regulatory deadlines.

As the agency explained in the interim final rule, the release of the full grant amounts under Section 405 shall be subject to the availability of funding for that fiscal year.

If there are expected to be insufficient funds to award full grant amounts to all eligible States in any fiscal year, NHTSA stated in the interim final rule that it may release less than the full grant amounts upon initial approval of the State's application and documentation, and the remainder of the full grant amounts up to the State's proportionate share of available funds, before the end of that fiscal year.

However, based on the agency's experience administering this grant program as well as the other grant programs that were authorized under TEA 21 in fiscal years 1999 and 2000, NHTSA has determined that it is not necessary to release funds in two stages. Accordingly, in FY 2001 and in each fiscal year thereafter, all Section 405 funds will be released at the same time. Since applications for Section 405 funds are due each fiscal year by August 1, the funds will be awarded near the end of each fiscal year (no later than September 30).

If there are insufficient funds to award the full grant amounts to all eligible States in any fiscal year, NHTSA will award each State its proportionate share of available funds. As stated in the interim final rule, project approval, and the contractual obligation of the Federal government to provide grant funds, shall be limited to the amount of funds released.

As explained in the interim final rule, if any funds remain available under 23 U.S.C. Sections 405, 410 and 411 at the end of a fiscal year, the Secretary may transfer these funds to the amounts made available under any other of these programs to ensure, to the maximum extent possible, that each State receives the maximum incentive funding for which it is eligible.

The agency requested comments from interested persons on the interim final rule that was published in October 1, 1998. Comments were due by November 30. The agency stated in the interim final rule that all comments submitted to the agency would be considered and that, following the close of the comment period, the agency would publish a document in the Federal Register responding to the comments and, if appropriate, would make revisions to the provisions of Part 1345.

The agency received submissions from seven commenters in response to the interim final rule. Comments were received from Henry M. Jasny, General Counsel for Advocates for Highway and Auto Safety (Advocates) and six states. The State comments were submitted by Betty J. Mercer, Division Director, Office of Highway Safety Planning, Michigan Department of State Police (Michigan); Albert E. Goke, Chief of the Montana Traffic Safety Bureau, Governor's Representative for Highway Traffic Safety (Montana); Ken Carpenter, State of New York, Governor's Traffic Safety Committee, Department of Motor Vehicles (New York); Thomas E. Bryer, P.E., Director of the Pennsylvania Bureau of Highway Safety & Traffic Engineering (Pennsylvania); James R. Grate, Manager, West Virginia Highway Safety Program (West Virginia); and Charles H. Thompson, Secretary of the Wisconsin Department of Transportation (Wisconsin). The comments, and the agency's responses to them, are discussed in detail below.

Some of the comments received in response to the interim final rule were positive. For example, Montana welcomed the addition of this incentive grant program and Advocates stated that it is “supportive of any legislative or agency initiated efforts to increase seat belt use rates. Seat belt use is the most effective means of ensuring occupant protection in most crash modes.” Advocates stated also that it “generally supports NHTSA's approach in the interim final rule and the criteria adopted by NHTSA in this rule.”

Additional comments related to the specific requirements that States must meet to qualify for a grant. These comments, and the agency's response to them, are discussed specifically below.

The interim final rule provided that, to meet the seat belt use law criterion beginning in FY 2001, a State's seat belt use law must require seat belt use in all seating positions in a vehicle. Michigan commented that resistance to seat belt use laws will make it difficult for many States to upgrade laws to all seating positions. Although Michigan recognized that the requirement for such laws was included in the statute, it asserted that “NHTSA should recognize that States will need considerable assistance in strategic planning and garnering general public support if upgraded belt laws are to become a reality in this country.”

The agency agrees that States may need technical assistance, such as data on injuries and fatalities involving unbelted occupants riding in rear seating positions, to help gain public support for such laws and the agency is prepared to provide such assistance. However, the purpose of the Section 405 program, and the seat belt use law criterion, was not merely to reward the status quo, but rather to provide an incentive for States to strengthen their laws and improve their programs. Moreover, even if States are not able to pass enhanced seat belt use laws, they still may qualify for funds under Section 405 by meeting four out of the remaining five criteria.

The interim rule indicated that the agency had decided to permit exceptions in seat belt use laws for persons with medical excuses; postal, utility and other commercial drivers who make frequent stops in the course of their business; emergency vehicle operators and passengers; persons riding in positions not equipped with seat belts; persons in public and livery conveyances; persons riding in parade vehicles; and persons in the custody of police.

Advocates supported some of these exceptions, but disagreed with the agency's decision to permit exceptions for utility and other commercial drivers who make frequent stops in the course of their business. Advocates stated that, “despite the adoption of such an exemption in some state laws, this exemption is vague, since the term ‘frequent stops’ is not defined, and is based on convenience rather than necessity. Exemptions from safety regulations should not be based on practical convenience, especially where the exceptions may undermine the general requirement.”

As the agency noted in the interim final rule, prior to the issuance of that document, the agency had reviewed existing State occupant protection laws to determine whether they contained any exceptions. We determined that a number of States made it unlawful for an individual to ride unrestrained in a motor vehicle, but provided an exception for utility or other commercial drivers who make frequent stops in the course of their business.

Although the Section 405 statute did not specifically provide for such an exception, the agency did not believe it was Congress' intent that the statute be read so literally as to penalize every State whose laws contained any exceptions at all. Accordingly, the agency considered whether this exception, and the others found in State laws at that time, would either be incompatible with the language of the statute or would so severely undermine the safety considerations underlying the statute so as to render a State whose law contains the exception ineligible from the incentive grant program.

In the agency's view, the exception that permits utility or other commercial drivers to ride unrestrained is limited and addresses a legitimate need for convenience in certain circumstances. In addition, we believe that this exception is not inconsistent with the language of the statute and would not severely undermine the safety considerations underlying the statute. We continue to believe that such an exception should be permitted.

Accordingly, this portion of the interim regulation is adopted without change.

Michigan commented that it will be difficult for States with secondary enforcement laws to upgrade to primary enforcement laws and that many States will be unable to meet the primary belt use law criterion within the period of eligibility. Michigan stated that “resources and expertise should be gathered to develop a workable successful approach to attaining a national change in attitude among the general public about these laws.”

Advocates, on the other hand, supported the primary seat belt use law criterion. It stated that “such laws are generally considered the single most effective means of increasing state seat belt use rates, especially when combined with heightened enforcement and publicity.”

The agency firmly believes that primary seat belt use laws, especially when they are actively enforced with high visibility, represent the most effective means of increasing seat belt use rates. Studies indicate that, overall, States with primary seat belt use laws achieve significantly higher seat belt use rates (NHTSA, 1999). For example, the June 2000 National Occupant Protection Use Survey (NOPUS) shows that the average seat belt use rate in States with primary enforcement laws was 77 percent, while the average seat belt use rate in States with secondary enforcement laws was only 63 percent.

Further, the public's support for primary enforcement of seat belt laws appears to be increasing. According to a 1998 NHTSA survey on attitudes toward the enforcement of State seat belt laws, 58 percent of those surveyed believed that law enforcement officials should be allowed to stop a vehicle if a seat belt violation is observed, an increase from 52 percent in 1996 (Motor Vehicle Occupant Safety Survey, 1998). In addition, a survey conducted in 1997 by Public Opinion Strategies found that 61 percent of those surveyed supported primary enforcement of seat belt use laws.

Moreover, as stated previously regarding the seat belt use law criterion of the Section 405 program, the purpose of the program, and the primary seat belt use law criterion, was not merely to reward the status quo, but rather to provide an incentive for States to strengthen their laws and improve their programs. In addition, even if States are not able to enact enhanced seat belt use laws, they may still qualify for funds under Section 405 by meeting four out of the remaining five criteria.

For all of these reasons, this portion of the interim regulation is adopted without change.

To qualify under the minimum fine or penalty points criterion, a State must impose a minimum fine or provide for the imposition of penalty points against the driver's license of an individual for a violation of the seat belt use law of the State and for a violation of the child passenger protection law of the State. The interim final rule provided that the term “minimum fine” means “a total monetary penalty that may include fines, fees, court costs, or any other additional monetary assessments collected.” The interim rule provided further that the minimum fine must amount to “not less than $25.00.”

The agency received three comments objecting to the $25 minimum fine set by the agency. Wisconsin commented that “the interim final rule arbitrarily establishes $25 as the minimum monetary penalty * * *” It recommended instead that each State should be allowed to set its own minimum fine and stated that the minimum fine “should be set at the lowest non-zero monetary penalty being used by any State,” which it believed to be $10. Wisconsin indicated that “relative to many traffic law violations, both $10 and $25 are rather nominal monetary penalties, and the difference between the two figures is hardly worth the political capital that would be required to convince a state legislature to increase the fine from the lower level to the higher level. The interim final rule should not penalize states that have had ‘a’ monetary penalty, albeit under $25, in place for many years.”

Montana also objected to the $25 minimum fine, stating that “significant fines in rural states surely are not as high as those imposed in highly urban areas. Typically, rural states with lower incomes and lesser densities enact fines suited to their own conditions.” Montana noted that a $20 fine is the average fine imposed in that State for a variety of traffic penalties. Further, Montana stated that “you remember when Montana was known for its $5.00 energy conservation fine imposed on drivers for speeding. That small fine was sufficient to maintain deterrence in our driving majority to avoid speeding, to remind the public of its driving responsibilities, and I believe to contribute to our success in achieving safety restraint usage rates at a high level of compliance.” Montana proposed that the minimum fine level be set at $20, which would allow it to comply with the minimum penalty requirement.

West Virginia commented that “NHTSA has overstepped their authority by interpreting what Congress meant by the term ‘minimum’ and setting that minimum amount at $25.” The State expressed its belief that Congress' intent was to allow each individual State to decide what its minimum fine should be.

By contrast, Advocates asserted that the minimum $25 fine was insufficient. It stated that, “such a low penalty threshold sends the message that seat belt and child restraint laws are trivial matters * * *.” Advocates stated that it was “not convinced that fines of $25, even when accompanied by court fees and costs, comprise a sufficient deterrent to violations of belt and child restraint use laws.” It asserted that the agency should not “merely adopt a minimum fine level that represents the current lowest common denominator in existing practice,” but instead should adopt a minimum fine level that will “encourage States to achieve higher standards of belt use through tougher State law requirements, including sanctions.”

Advocates argued also that because the interim regulation allowed a State to demonstrate compliance with the minimum fine criterion through laws, regulations or binding policy directives, or “as a matter of general judicial practice without specification in state law,” the criterion could be met “by nearly any State law and does not require improvements in State action or enforcement.”

Lastly, Advocates asserted that low level monetary fines are not an equivalent to penalty points on a license. Although Advocates recognized that the statute allows State laws to qualify if they establish a minimum fine, it stated that this “does not mean that the regulatory criteria should specify a fine that is minimal.”

After considering carefully all of the comments received regarding this criterion, NHTSA has decided that it will not change the $25.00 minimum fine requirement. As indicated in the interim final rule, the agency believes that it would be inconsistent with Congressional intent to allow States who provide for nominal or insignificant penalties to qualify for incentive grant funds with this criterion. At the same time, the agency does not want to set a minimum fine level that would prohibit rural States or States with higher poverty levels from reasonably meeting this criterion. During its review of State laws, the agency found that many States set a maximum fine level but did not establish a minimum fine for seat belt or child restraint violations. The agency determined that setting a $25 minimum fine level would challenge States to establish stronger standards for seat belt and child restraint violations, without imposing unreasonable burdens. While the regulation sets forth minimum penalties for seat belt use and child restraint violations, States are free to enact more severe penalties.

With respect to Advocates' comments regarding the importance of penalty points, the agency agrees that penalty points are an effective sanction for individuals who fail to use seat belts and child restraints. However, as Advocates acknowledged, the statute specifically provides that States may qualify under the minimum fine or penalty points criterion by assessing either a minimum fine or penalty points or both. Accordingly, the agency is not at liberty to require that States assess penalty points to qualify for a Section 405 grant.

Two States (New York and Pennsylvania) questioned whether their practice of waiving fines imposed for violations of the child passenger protection law, in cases where a violator presents proof of purchase of a child restraint system, would be permitted under the agency's regulations. During its review of FY 1999 grant applications, the agency determined that a State whose law contained such an exception would not be rendered ineligible from qualifying for a grant under the minimum fine or penalty points criterion if the State's law otherwise met the elements of this criterion. We have added language to the final rule, to reflect this determination.

The interim final rule provided that, to qualify under the Special Traffic Enforcement Program criterion, a State must provide for a statewide Special Traffic Enforcement Program for occupant protection that emphasizes publicity for the program. The interim rule indicated that the term “Special Traffic Enforcement Program” (STEP) references a model program that NHTSA recommends for State and community implementation because it has proven to be effective in increasing seat belt use at both statewide and community levels.

Michigan commented that the Section 405 statute does not emphasize “ S pecial T raffic E nforcement P rogram (STEP), but uses the term ‘special traffic enforcement program’ which could mean any number of statewide programs conducted in a manner other than the NHTSA STEP enforcement model.” Although it expressed its support for the requirement that STEP programs must reach 70% of a State's population and that States must describe the statewide nature of their programs, it asserted that “requiring a STEP model be implemented, however, does not permit the states the flexibility needed to tailor such a program to the needs and political climate of the state.” It asserted that “the STEP approach has not been documented to be effective in all locations in the country, especially those states without standard enforcement laws or without the ability to conduct enforcement checkpoints.”

Michigan recommended that the criterion should be modified to allow States to qualify “by demonstrating there is a special statewide enforcement program, i.e., ‘belt saturation patrol’, in place that reaches a specified population base and includes a statewide publicity campaign, not require that it follow a STEP enforcement model.”

Advocates expressed its support for the STEP criterion, stating that “we believe that STEP activities are reasonably calculated to improve safety belt use rates and, if properly conducted based on the requirements set forth in the interim final rule, should serve to improve seat belt use rates in the near term. We believe that such programs have previously proven effective because they focus states resources and activities on seat belt use and achieving a specific goal.”

As we stated in the interim final rule, States may conduct any enforcement activity, including saturation patrols, as long as the State's enforcement efforts call for specified periods of intensified enforcement in defined patrol areas, coupled with statewide publicity to draw attention to the enforcement efforts, and are carried out in jurisdictions that reach 70% of the State's population.

The agency believes that the requirements in the interim rule are sufficiently flexible to ensure that States are permitted to use any enforcement strategy available to them. Accordingly, we will not make any changes to the interim regulations in response to Michigan's comment.

The agency notes that this portion of the regulation uses the term “police.” Recognizing that law enforcement activities are conducted by police and also by law enforcement officials who perform their duties under other titles, the agency has replaced the term “police” each time it appears in this portion of the regulation with the phrase “law enforcement officials.” No other changes have been made to this portion of the regulation in this final rule.

The interim final rule provided that, to qualify under the child passenger protection education program criterion, a State must plan to implement a statewide child passenger protection education program that meets the following elements: (1) The program must provide information to the public about proper seating positions for children in air bag equipped motor vehicles, the importance of restraint use, and instruction on how to reduce the improper use of child restraint systems; (2) the program must provide for child passenger safety training and retraining to establish or update child passenger safety technicians, police officers, fire and emergency personnel and other educators to function at the community level for the purpose of educating the public about proper restraint use and to teach child care givers how to install a child safety seat correctly, and the training should encompass the goals and objectives of NHTSA's Standardized Child Passenger Safety Technician Curriculum; (3) the program must provide for periodic child safety seat clinics conducted by State or local agencies (health, medical, hospital, enforcement, etc.); and (4) each of the State's program activities (with the exception of the training and retraining activities) must cover at least 70% of the State's population; that is, the public information and clinic components of State programs must reach counties or other subdivisions of the State that collectively contain at least 70% of the State's population.

Advocates asserted that the agency needed to “provide some objective performance goals” under this criterion. It stated that, “while this aspect of the program is well intentioned, none of the requirements stated in the interim final rule, with the exception of the need to cover 70% of the state population, have quantifiable goals or objective threshold levels against which performance can be assessed.” As a result, Advocates asserted that, “this criterion is easy for a state to meet but difficult for the agency to evaluate in terms of effectiveness and performance.”

The agency believes that the requirements contained in the interim final rule are sufficient to ensure that the States establish meaningful child passenger protection programs. As Advocates acknowledged in their comments, each of the State's program activities (with the exception of the training and retraining activities) is required to cover at least 70% of the State's population. In addition, to demonstrate compliance with the public information program component in the first fiscal year in which a State wishes to qualify for a grant based on this criterion, it must submit a sample or synopsis of the content of planned public information program and the strategy that it plans to use to reach 70% of the targeted population. To demonstrate compliance with the training component, the State must submit a description of the activities it will use to train and retrain child passenger safety technicians and others, and it must provide the durations and locations of such training activities. Also, States must estimate the approximate number of people who will participate in the training and retraining activities and submit a plan for conducting clinics that will serve at least 70% of the population.

Additional requirements are imposed on States in subsequent fiscal years. To demonstrate compliance with the child passenger program criterion after the first fiscal year a State receives a grant based on this criterion, States must submit an updated plan for conducting a child passenger protection education program in the following year and information documenting that the prior year's plan was effectively implemented. The information must document that a public information program, training and child safety seat clinics were conducted; identify which agencies were involved; and indicate the dates, durations and locations of these programs.

The agency believes that these criteria are sufficient to ensure that meaningful child passenger protection education programs will be established. These requirements also will enable the agency to determine whether a State's child passenger safety initiatives are broad based and serve populations most in need of child passenger safety information. Accordingly, the agency has decided not to add any new compliance criteria in response to Advocates' comments.

Michigan commented that “the NHTSA Standardized Child Passenger Safety technical training has been in place for a relatively short period of time. Because training for certification takes considerable time, the reality is that States will not be in a position to have the required number of instructors needed to reach 70% of the population in the first years of the eligibility period.” To better accommodate the time needed to develop a network of trained child passenger safety instructors, Michigan encouraged the agency to adopt a more graduated approach to reaching the targeted population. Michigan encouraged the agency to amend the interim regulations to require that in fiscal year 2000, the State's training programs reach 50% of the targeted population; in fiscal year 2001, the State's programs reach 60% of the State's population; and in fiscal year 2002, the State's programs reach 70% of the State's population.

The interim final rule did not require that a State's training and retraining activities cover 70% of the State's population. The interim regulations provided that a State's public information and clinic programs must reach 70% of the State's population, but they specifically excluded the training component of a State's child passenger education program from this requirement. Moreover, as of January 2001, there were more than 14,000 certified child passenger safety technicians trained under the NHTSA/AAA Standardized child passenger safety (CPS) training course, and more than 850 technician instructors. Accordingly, the agency is confident that the infrastructure of trained and certified CPS professionals is sufficient to meet the needs throughout the country. NHTSA has provided funding to States to help develop this infrastructure and States are continuing to dedicate highway safety grant funds to expand CPS training, education and outreach, as needed. Accordingly, the agency did not modify the interim final rule in response to this comment.

Pennsylvania questioned the requirement that States submit a sample or synopsis of the contents of the planned public information program and the strategy that will be used to “reach 70% of the targeted population.” Specifically, Pennsylvania requested that the agency clarify the meaning of the term “targeted population.”

The agency agrees that this portion of the interim final rule should be clarified. The agency believes that the public information component of a State's child passenger protection program should cover 70% of the State's total population and that the clinic component should cover 70% of a targeted population. The agency recognizes that 70% of a State's total population does not have children of child safety seat or booster seat age. Accordingly, States should not be required to conduct clinics reaching 70% of their total population.

The agency has modified the regulation to require that a State's clinic program be designed to reach at least 70% of a targeted population, and the term “targeted population” has been defined to mean “a specific group of people chosen by the State to receive instruction on proper use of child restraint systems.” The regulation also has been modified to require that States identify the target population for their clinic programs and provide a rationale for choosing a specific group, supported by data, where possible. For example, a State may choose to target all parents and care givers of children child safety seat age or booster seat age if data identify a statewide problem. Alternatively, a State may design its clinic program to focus on a lack of restraint use or high misuse rate among a specified minority, low-income or rural population, if data show a disproportionately high problem among that population as compared to data for the rest of the State.

We have determined, however, that the public information component of the State's child passenger protection education program should reach 70% of the State's total population. The public information campaign should be designed to raise awareness among the population as a whole of the importance of child restraint use.

We believe that these changes will give States flexibility in determining how to best structure their child passenger protection education programs and ensure that those groups most in need of instruction on the proper use of child restraint systems will receive this information.

In addition, the agency notes that this portion of the regulation also uses the term “police.” As stated previously, law enforcement officials perform their duties under a variety of titles, not limited to the title “police.” Accordingly, the agency has replaced the term “police” each time it appears in this portion of the regulation with the phrase “law enforcement officials.”

The interim final rule provided that, to qualify under this criterion, a State must make unlawful the operation of a passenger motor vehicle whenever an individual who is less than 16 years of age is not properly secured in a child safety seat or other appropriate restraint system in any seating position of the vehicle. The agency noted in the interim final rule that some States currently allow some children under age 16 to ride unrestrained if they are in the rear seat of passenger vehicles or if they ride in certain excepted vehicles. The agency stated in the interim rule that it believes the intent of the legislation was to eliminate these gaps in coverage.

In its comments, Advocates agreed with the agency that the intent of this criterion was to close the gaps in current State laws and Advocates asserted that “no exceptions should be permitted in order to qualify under this criterion.”

The agency has considered exceptions under this criterion very carefully, and only limited exceptions have been permitted, such as when children under the age of 16 ride on a school bus or when children under age 16 have a medical or physical condition that would prevent appropriate restraint and their condition is certified by a physician.

Accordingly, this portion of the interim regulation is adopted without change.

The interim final rule provided that no grant may be made to a State unless the State certifies that it will maintain its aggregate expenditures from all other sources for its occupant protection program at or above the level of such expenditures in fiscal years 1996 and 1997. Pennsylvania questioned what the agency meant by the term “all other sources” and recommended that the agency clarify this provision.

The agency recognizes that, in fiscal years 1996 and 1997, some States expended unusually large sums of money on their occupant protection programs and that these sums were from special funding sources that are no longer available. In particular, many States experienced a transfer of funds in fiscal year 1995, under the Section 153 program, because they did not have in effect conforming motorcycle helmet or seat belt use legislation. Some of these States chose to use these funds to upgrade their occupant protection programs and, in many cases, the funds that had been transferred in fiscal year 1995 were expended in fiscal years 1996 and 1997.

The agency believes that the maintenance of effort requirement contained in the Section 405 program was intended to ensure that States maintain their ordinary spending on their occupant protection programs and that the funds they receive under the Section 405 program will supplement those expenditures and not replace them. The agency does not believe the requirement was intended to match special or unusual funding resources, such as the Section 153 transfer or other funds made available to States under Chapter 1 of Title 23 of the United States Code, some or all of which a State may choose to use also to supplement its ordinary spending in this area. The agency believes that the inclusion of these special funding sources in the maintenance of effort requirement would impose a hardship on the States and would not result in the most effective use of these resources.

Accordingly, the regulation has been modified to clarify that States must maintain their aggregate expenditures from all other sources, except those authorized under Chapter 1 of Title 23 of the United States Code, for their occupant protection programs at or above the average level of such expenditures in fiscal years 1996 and 1997.

TEA 21 established a new incentive grant program under Section 2003(b) to promote child passenger protection education and training. Section 2003(b) provides federal funds for activities that are designed to prevent deaths and injuries to children; educate the public concerning the design, selection, placement, and installation of child restraints; and train and retrain child passenger safety professionals, police officers, fire and emergency medical personnel, and other educators concerning all aspects of child restraint use.

Wisconsin questioned why the agency's interim final rule was silent about the eligibility criteria that will be applied for States seeking grants under 2003(b).

The agency announced the availability of grants under Section 2003(b) in notices published in the Federal Register on September 20, 1999 (64 FR 50861) and on November 6, 2000 (65 FR 66582). The specific eligibility criteria for the grants were discussed in these notices.

Executive Order 12988 (Civil Justice Reform): This final rule will not have any preemptive or retroactive effect. The enabling legislation does not establish a procedure for judicial review of final rules promulgated under its provisions. There is no requirement that individuals submit a petition for reconsideration or other administrative proceedings before they may file suit in court.

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures: The agency has examined the impact of this action and has determined that it is not significant under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures.

This action will not have an annual effect on the economy of $100 million or more or adversely affect in a material way a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities. It will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, and it will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof.

Regulatory Flexibility Act: In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the agency has evaluated the effects of this action on small entities. Based on the evaluation, we certify that this action will not have a significant impact on a substantial number of small entities. States are the recipients of any funds awarded under the Section 405 program, and they are not considered to be small entities, as that term is defined in the Regulatory Flexibility Act.

Paperwork Reduction Act: This final rule contains information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR Part 1320. Accordingly, these requirements have been submitted previously to and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 3501, et seq. ). These requirements have been approved under OMB No. 2127-0600, through February 28, 2002.

National Environmental Policy Act: The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that it will not have any significant impact on the quality of the human environment.

The Unfunded Mandates Reform Act: The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This final rule does not meet the definition of a Federal mandate, because the resulting annual expenditures will not exceed the $100 million threshold. In addition, this incentive grant program is completely voluntary and States that choose to apply and qualify will receive incentive grant funds.

Executive Order 13132 (Federalism): This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Accordingly, the preparation of a Federalism Assessment is not warranted.

Under subsection (e) of the Indian Tribal Economic Development and Contract Encouragement Act of 2000 (25 USC 81) (referred to commonly and herein as “Section 81”), the Secretary is required to enact regulations establishing which types of agreements are not covered by Section 81. The preamble to the Proposed Rule, 65 FR 43874 (July 14, 2000), provides further background on the history of Section 81, including the contents of the 2000 amendments. The Final Rule was developed with attention to Secretarial Order 3215, “Principles for the Discharge of the Secretary's Trust Responsibility,” of April 28, 2000, which was converted to and made permanent in the Departmental Manual on October 31, 2000. See 303 DM 2.

In a significant departure from past practice, the BIA distributed the preliminary drafts of the proposed regulation to the National Congress of American Indians (NCAI) and to tribes through BIA regional directors, with a request for comments and recommendations. Several subsequent meetings were held with an NCAI policies and procedures working group to discuss the evolving draft regulation prior to publishing the proposed regulation. These meetings included the Assistant Secretary—Indian Affairs, the Deputy Commissioner of Indian Affairs, staff of the Trust Policies and Procedures (TPP) project, trust program managers, and trust program attorneys from the Solicitor's Office. Notably, tribal representatives from each BIA region and BIA managers participated in a three-day meeting in Mesa, Arizona, in April 2000, to discuss the draft regulation.

The regulation was published in the Federal Register on July 14, 2000, (65 FR 43874) with a 90-day public comment period to solicit comments from all interested parties. The BIA received 19 written comments from tribes, tribal representatives, and tribal organizations. During the comment period, the BIA discussed the regulation and received oral comments on the record at seven formal tribal consultation sessions with tribal leaders, individual Indians, and other interested parties: Aberdeen, SD (August 7-8, 2000); Oklahoma City, OK (August 10, 2000); Bloomington, MN (August 17, 2000); Albuquerque, NM (August 21 and 22, 2000 [two separate consultation meetings]; Billings, MT (August 24, 2000); and Reno, NV (August 28-29, 2000). Transcripts were made of these sessions in order to ensure that both oral and written comments were considered. Following the consultation meetings, several BIA regional and agency offices established informal local working groups with tribes to encourage discussion of the proposed regulations and submission of written comments. Throughout the comment period the BIA met on an informal basis to discuss the regulations with interested organizations, including the NCAI working group and the Inter-Tribal Monitoring Association. In sum, tribes and individual Indians have had an extraordinary opportunity to provide meaningful input on the proposed regulation through informal consultations on the early drafts, formal consultations, and the public comment period.

Comments were forwarded to a clearinghouse for compilation. The comments and compilation documents were carefully reviewed by the regulation drafting team, made up of BIA employees from the Central Office and trust program attorneys from the Solicitor's Office. Depending upon their merit, the Department accepted, accepted with revision, or rejected particular comments made on each part of the rule. Substantive comments and responses by the BIA are summarized below.

As noted in the section-by-section analysis below, in direct response to comments the regulations have been clarified. No sections were deleted from the Proposed Rule to the Final Rule. One new section was added in the Final Rule at section 84.007 and the proposed section 84.007 was renumbered to section 84.008.

Overall, respondents recommended that we provide clarifications as to the types of agreements that do not require approval under Section 81. Therefore, in response to these comments, we revised definitions and language to make clearer the types of agreements that are not subject to Section 81. These revisions included corrections to the treatment of corporations under 25 USC 477 and contracts under 25 USC 450f or compacts under 25 USC 458aa. Several respondents recommended that we develop specific procedures for the submission and review of contracts covered under this Part. The BIA does not intend to prescribe any particular format for submission of requests for approval. Additionally, internal procedures for BIA review are not appropriate for rulemaking, but will be addressed in the Indian Affairs Manual.

We also received comments concerning Section 81's repeal of our authority to approve tribal attorney contracts, except for those entered into by the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek, and Seminole) in Oklahoma. As noted in the preamble to the Proposed Rule, BIA will now only approve attorney contracts if required to do so under a tribal constitution. The criteria, if any, for approval of such contracts will be those in the tribal constitution and any relevant Federal law. As is its policy, BIA will defer to the tribe's interpretation of its own law regarding such approvals. Consistent with the repeal of our statutory authority for approval of tribal attorney contracts, we are today repealing relevant portions of the regulations for such approvals at 25 CFR Part 89.

Summary of Section. Section 84.001 states the purpose of the rule as being the implementation of the Indian Economic Development and Contract Encouragement Act of 2000, Pub. L. 106-179.

Comments. We received no comments on this section and no changes were made.

Summary of Section. Section 84.002 contains terms necessary for understanding the rule. The term “encumber,” which Congress did not define in the Act, refers, consistent with the Act's legislative history, to the possibility that a third party could gain exclusive or nearly exclusive proprietary control over tribal land. The “third party” in this definition refers to any party outside of the tribe who, under the terms of the contract or agreement, could gain exclusive or nearly exclusive proprietary control over tribal land, such as a lender or the holder of a secured interest in any improvements for a transaction involving a tribe and a potential lessee. We have defined “Indian tribe” as it is defined in the Act. The definition of “tribal lands” in the rule is the same as the definition of “Indian lands” in the Act. We have used “tribal lands” to make it clear that the provisions of the Act and this rule do not apply to individually owned lands.

Comments. We received comments to revise the definitions of “encumber ”, “Indian tribe”, and “tribal lands”. We modified the definition of “encumber” to clarify that the terms of the contract or agreement will determine whether the contract or agreement encumber tribal lands. We did not accept the recommendations to change the definitions of “Indian tribe” and “tribal lands”. These definitions are those provided by Congress. We did, however, modify the definition of “Indian tribe” to reflect the actual language of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450b(e), as directed by Congress.

Summary of Section . Section 84.003 indicates that, unless otherwise exempted, those contracts and agreements that encumber tribal lands for a period of seven or more years require Secretarial approval under this rule. As noted in the preamble to the Proposed Rule, the legislative history of Section 81 states, for example, that, if the default provision in a contract or agreement allows a third party (e.g., a lender) to operate the facility, that contract or agreement would “encumber” tribal land within the meaning of Section 81. If, however, the lender is only entitled to first right to the revenue from the facility, the contract or agreement would not “encumber” tribal land.

Comments. No comments were received for this section and no changes were made.

Summary of Section. Section 84.004 indicates that the following types of contracts or agreements are not subject to this rule:

• Contracts or agreements otherwise reviewed and approved by the Secretary under this title or other federal law or regulation. Congress did not repeal any other requirement for Secretarial approval of encumbrances, nor did it state that the Act imposed an additional approval process, separate from existing statutory requirements. This exemption is also consistent with previous opinions of both the Department of the Interior and the Department of Justice, judicial decisions, and legislative history of the Indian Mineral Development Act, all of which consistently state that the requirements of Section 81 do not apply to leases, rights-of-way, and other documents that convey a present interest in tribal land. Note, however, that contracts and agreements that are similar to those approved under other federal law or regulation, but are not subject to that approval, such as a contract between a tribe and another party to least a tract of tribal land at a future date, may be subject to approval under this Part.

• Leases of tribal land that are exempt from approval by the Secretary under 25 U.S.C. 415 or 25 U.S.C. 477. Currently, this exemption only applies to certain leases by the Tulalip Tribes, the Navajo Nation, and tribes with a corporate charter authorized by 25 U.S.C. 477.

• Subleases and assignments of leases of tribal land that do not require approval by the Secretary under Part 162 of this title. This provision will ensure maximum consistency with BIA policies concerning different types of leases.

• Contracts or agreements that convey temporary use rights assigned by tribes, in the exercise of their jurisdiction over tribal lands, to tribal members. Such assignments are internal tribal matters. We must approve any encumbrances of the assigned tribal land under this Part or another relevant regulation (e.g., 25 CFR Part 162).

• Contracts or agreements that do not convey exclusive or nearly exclusive proprietary control over tribal lands for a period of seven years or more. By definition, such contracts or agreements do not encumber the land under the Act. Such contracts or agreements may include contracts for personal services; construction contracts; contracts for services performed for tribes on tribal lands; and bonds, loans, security interests in personal property, or other financial arrangements that do not and could not involve interests in land.

• Contracts that are exempt from Secretarial approval under the terms of a corporate charter authorized under 25 U.S.C. 477.

• Tribal attorney contracts. However, as noted above, although the Act repealed the federal statutory requirements for approval of most attorney contracts, the BIA will still do so if required under a tribal constitution.

• Contracts or agreements entered into in connection with a contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a compact under the Tribal Self-Governance Act, 25 U.S.c. 458aa. This is to conform to the exemption of these contracts from approval by the Secretary under 25 U.S.C. 4501(c)(15)(A).

• Contracts or governments that are subject to approval by the National Indian Gaming Commission. The Act specifically exempts these contracts and agreements from its provisions, and the National Indian Gaming Commission will continue to review and approve contracts that provide for management of a tribal gaming activity.

• Contracts or agreements under the Federal Power Act (FPA) relating to the use of tribal lands that meet the definition of a “reservation” under the FPA, with certain conditions. The FPA already provides for review of such contracts or agreements by the Secretary.

Comments. Several comments recommended that the rule provide specific examples of contracts that do not encumber tribal land. These comments were partially accepted and clarifications were provided in this section concerning certain types of agreements such as hydropower projects and assignments of tribal land to tribal members.

The preamble to the Proposed Rule stated that Section 81 did not apply by its terms to any contracts or agreements entered into by corporations chartered under 25 U.S.C. 477. Commenters noted that there was no support in either Section 81 or its legislative history for such a statement. We agree, and have narrowed the exemption to only those contracts or agreements entered into by those corporations that do not otherwise require Secretarial approval. Conversely, commenters stated that the exemption in the Proposed Rule limited to attorney contracts entered into by Self-Governance tribes was too narrow, ignoring the broad exemption from Secretarial approval under 25 U.S.C. 4501(c)(15)(A) for any contract or agreement entered into under the Indian Self-Determination Act, 25 U.S.C. 450f, or a compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa. We accepted the comments and broadened the exemption accordingly.

We rejected comments that recommended that the rule contain an exhaustive list of contracts or agreements that do not encumber tribal land. Such a list is not practicable because the determination of encumbrance is conducted on a case-by-case basis. For example, a restrictive covenant or conservation easement may encumber tribal land within the meaning of Section 81, while an agreement that does not restrict all economic use of tribal land may not. An agreement whereby a tribe agrees not to interfere with the relationship between a tribal entity and a lender, including an agreement not to request cancellation of the lease, may encumber tribal land, depending on the contents of the agreement. Similarly, a right of entry to recover improvements or fixtures may encumber tribal land, whereas a right of entry to recover personal property may not.

Summary of Section. Section 84.005 makes it clear that the Secretary will return to the submitting tribes those contracts and agreements that do not require his or her approval. Therefore, we will no longer issue “accommodation approvals.”

Comments. We received several comments recommending that the regulation specify a specific time frame when the Secretary will return contracts and agreements with a statement explaining why Secretarial approval is not required. We accepted these comments and added a time frame in this section that states that within thirty days after receipt of final, executed documents, the Secretary will return such contracts and agreements with a statement explaining why Secretarial approval is not required. We also received comments requesting provisions for appeal of determinations under this section. These comments were not accepted because Part 2 of this Title applies to all decisions made by the Secretary, including those under this section.

Summary of Section. Section 84.006 establishes the criteria for disapproval of a contract or agreement under this rule. Specifically, the Secretary must disapprove those contracts or agreements that would violate federal law or those that do not contain provision(s) regarding the exercise of tribal sovereign immunity. As noted in the preamble to the Proposed Rule, consistent with the legislative history of the Act, these are the only criteria for Secretarial disapproval under this rule.

Comments. Many respondents provided comments that recommended that the Secretary consult with tribes prior to disapproving a contract or agreement so that tribes may have an opportunity to correct elements that may lead to disapproval. We accepted these comments and added subsection (b) to this section to identify that the Secretary will consult with tribes for this purpose. We also received comments asking whether the Secretary will require particular kinds of remedies for a contract or agreement. Consistent with the purposes of Section 81, the Secretary will only identify whether remedies are addressed but will not disapprove a contract or agreement based on the types of remedies used.

Summary of Section. This section provides that a contract or agreement that requires Secretarial approval under this Part is not valid until the Secretary approves it.

Comments. This section was added to the Final Rule in response to several comments. We also received comments recommending that we determine in the rule whether contracts can be approved retroactively by the Secretary. Decisions as to whether a particular contract or agreement may be approved retroactively will be made on a case-by-case basis. Such retroactive effect may be approved if the Secretary is satisfied that the consideration for the contract or agreement was adequate; that the tribe received the full consideration bargained for; that there is no evidence of fraud, overreaching, or other illegality in the procurement of the contract or agreement; and that the conditions of section 84.006 of this Part are met. Wishkeno v. Deputy Assistant Secretary—Indian Affairs (Operations), 11 IBIA 21 (1982).

Summary of Section. Section 84.008 states, consistent with section 2(b) of the Act, that the effect of disapproval of a contract or agreement under this Part (as opposed to return of a contract or agreement under section 84.005 of this rule) is that the contract or agreement is invalid.

Comments. There were no comments on this section. The section was renumbered from § 84.007 in the Proposed Rule to this section of the Final Rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

It has been determined that this rule is not a “significant regulatory action” from an economic or policy standpoint. This rule is pursuant to a statutory mandate and is consistent with the Department's policy of encouraging tribal self-determination and economic development. The rule reduces the number of contracts the Department has to review each year. Prior to the amendments enacted under Pub. L. 106-179, tribes had to submit certain contracts for approval by the Secretary of the Interior for which Secretarial approval has now (through enactment of Pub. L. 106-179) been deemed unnecessary. Those tribes having contracts or agreements covered under the new law, however, must include a statement regarding their sovereign immunity or remedies. This is an intergovernmental mandate; however, it would not affect the rights of either party under such contracts and agreements, but would only require that these rights be explicitly stated. The cost burden on the tribes for including this provision would be minimal. Otherwise, the rule has no direct or indirect impact on any other agency, does not materially alter the budgetary impact of financial programs, or raise novel legal or policy issues.

With respect to the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:

(1) Eliminate drafting errors and ambiguity;

(2) Write regulations to minimize litigation; and

(3) Provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section (b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:

(1) Clearly specifies the preemptive effect, if any;

(2) Clearly specifies any effect on existing Federal law or regulation;

(3) Provides a clear legal standard for affected conduct while promoting simplification and burden reduction;

(4) Specifies the retroactive effect, if any;

(5) Adequately defines key terms; and

(6) Addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The Department of the Interior has determined that, to the extent permitted by law, the rule meets the relevant standards of Executive Order 12988.

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for this rule because it applies only to tribal governments, not State and local governments.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more. This rule will not result in a major increase in costs or prices. In fact, it is estimated that the Department will save time and resources through the rule because the number of contracts submitted for Secretarial approval will be reduced. Therefore, no increases in costs for administration will be realized and no prices would be impacted through the streamlining of the contract approval process within the Department and the BIA. The effect of the rule is to encourage and foster tribal contracting and, consequently, strengthen tribal self-determination and economic development. This rule will not result in any significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets. The impact of the rule will be realized by tribal governments in the economy of administration accorded contract negotiation between tribes and third parties. Unless the contracts contemplate an encumbrance of Indian lands or by their terms could otherwise lead to the loss of tribal proprietary control over such lands, the Department would not require such contracts and agreements to be submitted to the BIA for approval. The Department anticipates, therefore, that the impacts to small business or enterprises and the tribes themselves will be positive and, indeed, allow for greater flexibility in contracting for certain services on Indian lands.

No information or record keeping requirements are imposed by this rule. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

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.

This rule is categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq., because its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and the Federal actions under this rule (i.e., approval or disapproval of contracts or agreements that could encumber Tribal lands for a period of seven years or more) will be subject at the time of the action itself to the National Environmental Policy Act process, either collectively or case-by-case. Further, no extraordinary circumstances exist to require preparation of an environmental assessment or environmental impact statement.

Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the Act, the Department generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. This rule will not result in the expenditure by the state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The Department does take notice, however, that the rule (in response to Pub. L. 106-179) requires that a tribe entering into a covered contract include a specific statement regarding its sovereign immunity or remedies. This is an additional enforceable duty imposed on the tribes, and so would constitute an intergovernmental mandate under the Unfunded Mandates Reform Act. However, the cost of this mandate would be minimal.

In accordance with the President's memorandum of May 14, 1998, “Consultation and Coordination with Indian Tribal Governments” (63 FR 27655) and 512 DM 2, we have evaluated any potential effects upon Federally recognized Indian tribes and have determined that there are no potential adverse effects. No action is taken under this rule unless a tribe voluntarily enters into a contract or agreement that could encumber tribal land for seven years or more. As noted above, tribes were asked for comments prior to publication of this Final Rule.

In accordance with the President's Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355), we have determined that this rulemaking 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. This rulemaking simply clarifies those types of contracts or agreements encumbering tribal land that are not subject to the approval of the Secretary of the Interior under the Indian Tribal Economic Development and Contract Encouragement Act of 2000. This is, therefore, an administrative clarification and would not otherwise have any impact on the Nation's energy resources.

In 1871, Congress enacted section 2103 of the Revised Statutes, codified at 25 U.S.C. 81 (Section 81). It placed several restrictions, including a requirement for approval by the Secretary of the Interior, on contracts between any person and any Indian tribe or individual Indians for

Section 81 reflected Congressional concern that Indian tribes and individual Indians were incapable of protecting themselves from fraud in their financial affairs. To that end, it also required that the Secretary approve any contracts for legal services between an Indian tribe and an attorney. Congress later confirmed the requirement for Secretarial approval of tribal attorney contracts with the passage of section 16 of the Indian Reorganization Act (IRA) of 1934, 25 U.S.C. 476 (Section 476 does not apply to the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek, and Seminole) in Oklahoma. The Secretary has separate authority for approval of attorney contracts for the Five Civilized Tribes under section 1 of Pub. L. 82-440, 25 U.S.C. 82a.)

In March 2000, Congress enacted the Indian Tribal Economic Development and Contract Encouragement Act of 2000 (the Act), Pub. L. 106-179. The Act generally replaces Section 81 with a new provision that does not include the requirement to approve tribal attorney contracts. (We are publishing final regulations today at 25 CFR part 84 implementing the Act.) Subsection (f) of the Act repeals the portion of 25 U.S.C. 476 concerning approval of tribal attorney contracts. The Act does not address the separate requirement that attorney contracts by the Five Civilized Tribes must be approved by the Secretary.

Because the Act repealed much of our statutory authority for approval of tribal attorney contracts, we are today repealing the corresponding regulations in 25 CFR part 89. We are not repealing the regulations concerning approval of tribal attorney contracts for the Five Civilized Tribes, since Congress left our authority for those approvals in place. We will, however, issue a separate proposed rule, in consultation with the Five Civilized Tribes, to revise these regulations, especially 25 CFR 89.30, in light of the amendments to section 81. We are also not repealing our regulations in part 89 for the payment of tribal attorneys fees.

Consistent with the long-standing principle that the federal trust obligation may not be unilaterally terminated, the Act does not alter those tribal constitutions that require federal approvals for specific tribal actions, such as attorney contracts. Thus, the Secretary must still approve or disapprove attorney contracts if a tribal constitution so requires. The criteria, if any, for approval of such contracts will be those in the tribal constitution and any relevant Federal law. As is its policy, BIA will defer to the tribe's interpretation of its own law regarding such approvals.

As noted above, this final rule is effective on the publication of this notice. Under 5 U.S.C. 553(b)(3)(B), notice and public comment on this final rule are impracticable, unnecessary, and contrary to the public interest. In addition, we have good cause for making this rule effective immediately under 5 U.S.C. 553(d)(3). Notice and public procedure would be impracticable and unnecessary because this rule is merely repealing regulations for which we now have no statutory authority.

Waiting for notice and comment on this final rule would be contrary to the public interest. Some of the comments on the proposed part 84 regulations expressed confusion as to the status of the part 89 regulations that we are repealing today. By making this a final rule effective immediately, we end such confusion.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This final rule is not a “significant regulatory action” from an economic or policy standpoint. This final rule is pursuant to a statutory mandate and is consistent with the Department's policy of encouraging tribal self-determination and economic development. The final rule reduces the number of contracts the Department has to review each year. Prior to the amendments enacted under Pub. L. 106-179, tribes had to submit certain contracts for approval by the Secretary of the Interior for which Secretarial approval has now (through enactment of Pub. L. 106-179) been deemed unnecessary. The final rule has no direct or indirect impact on any other agency, does not materially alter the budgetary impact of financial programs, or raise novel legal or policy issues.

With respect to the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section (b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The Department of the Interior has determined that, to the extent permitted by law, the final rule meets the relevant standards of Executive Order 12988.

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for this final rule because it applies only to tribal governments, not State and local governments.

This final rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This finals rule will not result in an annual effect on the economy of $100 million or more. This final rule will not result in a major increase in costs or prices. In fact, it is estimated that the Department will save time and resources through the final rule because the number of contracts submitted for Secretarial approval will be reduced. Therefore, no increases in costs for administration will be realized and no prices would be impacted through the streamlining of the contract approval process within the Department and the BIA. The effect of the final rule is to encourage and foster tribal contracting and, consequently, strengthen tribal self-determination and economic development. This final rule will not result in any significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

No information or recordkeeping requirements are imposed by this final rule. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

This final 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.

This final rule is categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq., because it is of an administrative, legal, and procedural nature. Further, no extraordinary circumstances exist to require preparation of an environmental assessment or environmental impact statement.

Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the Act, the Department generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. This final rule will not result in the expenditure by the state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

In accordance with the President's memorandum of May 14, 1998, “Consultation and Coordination with Indian Tribal Governments” (63 FR 27655) and 512 DM 2, we have evaluated any potential effects upon Federally recognized Indian tribes and have determined that there are no potential adverse effects.

In accordance with the President's Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355), we have determined that this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This is merely an administrative action (the removal of text of certain sections of regulations concerning attorney contracts) and does not otherwise qualify as significant regulatory action under Executive Order 12866 or any successor order.

On April 25, 2001, we published a notice of proposed rulemaking (NPRM) entitled Discharge of Effluents in Certain Alaskan Waters by Cruise Vessel Operations in the Federal Register (66 FR 20770). We received 7 letters commenting on the proposed rule. No public hearing was requested, and none was held.

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 regulations enacted by this final rule are the product of “Title XIV—Certain Alaskan Cruise Ship Operations” of the Miscellaneous Appropriations Bill (H.R. 5666) passed by Congress on December 21, 2000 in the Consolidated Appropriations Act of 2001 (Pub. L. 106-554) (“Title XIV”). Discussed at greater length below, Title XIV gives the Coast Guard new enforcement tools essential to curb current sewage and graywater effluent discharges from large cruise vessels in Alaskan waters. There is good cause to make this final rule effective upon publishing because the Coast Guard needs the regulations to enforce the standards set in Title XIV during the summer 2001 cruise season. The lack of a final rule has inhibited enforcement of the new legislation during this season. The Coast Guard has initiated law enforcement action against two vessels that arrived during the first week of the season for violating the Title XIV standards. These and other potential violators of the legislation and these regulations, in particular the self-reporting and record keeping requirements, are currently escaping complete enforcement action. The inability to wholly enforce Congress' mandate in Title XIV will continue until the rule is made effective. Further, the majority (6 of 7) of the public comments received stated that the Coast Guard should immediately begin enforcement of these proposed regulations.

Congress passed Title XIV in response to public concern with environmental impacts of cruise vessels on Alaska waters. This legislation was drafted in the wake of past incidents of illegal wastewater discharges, the discovery of high levels of fecal coliform in legal discharges of treated sewage and graywater, the projected growth of the industry, and the trend within the industry towards larger vessels that carry over 5000 people.

In December of 1999, a task force comprised of representatives from the federal government, State government, the cruise industry, and environmental groups was established to develop voluntary procedures for sampling and analyzing wastes generated by cruise vessels while operating in Alaska's waters during the 2000 cruise vessel season.

During the summer 2000 cruise season, the relevant segment of the cruise industry voluntarily agreed not to discharge treated sewage or graywater while in port, not to discharge garbage or untreated sewage in Southeast Alaska's “Donut Holes” (bodies of water greater than three miles from any shoreline yet within Alaska's inside passage), and not to discharge treated sewage or graywater, unless more than 10 miles from port and proceeding at a speed of not less than 6 knots.

Additionally, a voluntary sampling and testing protocol and Quality Assurance/Quality Control Plan (QA/QPC) for treated sewage and graywater were developed. The protocol and QA/QPC were applied to 21 cruise vessels calling on Alaska ports during the 2000 season.

The test results revealed that the majority of the vessels' discharges, both treated sewage and graywater, exceeded marine sanitation device (MSD) design standards for water quality of 200 fecal coliform per 100 milliliters and 150 milligrams per liter total suspended solids (TSS). The high levels of fecal coliform and TSS found in treated sewage indicate that the MSDs used by cruise vessels may not be operating properly or functioning as designed. The Coast Guard boarded 15 vessels as a result of high fecal coliform and TSS levels. Five vessels were found to have evidence of improperly functioning MSDs. The source of the high fecal coliform and TSS found in graywater has yet to be positively determined.

Concurrent with this voluntary sampling process, Congress was drafting legislation that addressed sewage and graywater discharges in Alaska's waters and sought to close the “Donut Holes” located in Southeast Alaska's Inside Passage to untreated sewage discharge. This legislation was enacted into law on December 21, 2000, as part of the Consolidated Appropriations Act of 2001 in the form of Title XIV.

The summer 2001 cruise season began on May 1st. As in the past two seasons, the cruise industry has consented to voluntarily participate in a sampling protocol. The regulatory requirements set forth in the NPRM are being observed voluntarily. Despite notice of the new standards and voluntary industry participation in a sampling program based on those standards, the Coast Guard has initiated law enforcement action against two vessels that arrived during the first week of the season for violating the Title XIV standards. However, this law enforcement action has been limited in the absence of the regulations stated in this final rule.

These regulations are in response to Title XIV statutory mandate to draft implementing regulations. Section 1406 of Title XIV directs the Secretary to incorporate into the commercial vessel examination program an inspection regime sufficient to verify that operators of cruise vessels carrying 500 or more passengers and visiting ports in the State of Alaska or operating in the applicable waters of Alaska are in full compliance with the environmental record keeping and equipment requirements of Title XIV, the Federal Water Pollution Control Act, as amended, and any regulations issued there under, other applicable Federal laws and regulations, and all applicable international treaty requirements. The applicable waters of Alaska are defined as the waters of the Alexander Archipelago, the navigable waters of the United States within the State of Alaska, and the Kachemak Bay National Estuarine Research Reserve.

As noted above, the Coast Guard received 7 comments on the NPRM. These comments were received from private individuals and representatives of private environmental organizations. No comments were received from the cruise ship industry. The comments raised both general issues about Title XIV and the proposed regulations and specific issues about the language of the proposed regulations.

The general issues indicated three things. First, commenters uniformly supported the new legislation and recommended immediate enforcement of the statute and the proposed regulations. Second, the majority of the letters urged the Coast Guard to seek increased funding to ensure rigorous implementation and enforcement of the regulations. Third, the letters recommended the Coast Guard use as many unannounced inspections of cruise vessels as necessary to ensure pollution control equipment is functioning properly.

In raising these general issues, commenters did not recommend specific changes to the proposed regulations, therefore none have been made. The first general comment recommending immediate enforcement of the proposed regulation does, however, support the Coast Guard's determination that good cause exists for the final rule to be made effective upon publishing.

One of the 7 comments stated that Title XIV and the proposed regulations would only create a large environmental problem and that all cruise ship effluent discharges should be directed to shoreside processing plants. This comment sought action that is beyond the scope of Title XIV and this rulemaking. As such, no changes were made in response to this comment.

Four commenters recommended immediate designation of “no-discharge zones” under § 159.309(a)(2). This section, along with section 1404 of Title XIV from which § 159.309(a)(2) is derived, does not provide for establishment of no-discharge zones. Instead, they provide for establishment of areas less than a mile from shore, by the Coast Guard in consultation with the State of Alaska, for discharge by cruise ships. The language in § 159.309(a)(2) is directly quoted from the law. Establishment of no-discharge zones is provided for in Title XIV section 1410, however, it gives authority to State of Alaska to petition the Administrator of the Environmental Protection Agency to establish no-discharge zones, not the Coast Guard. Therefore, establishment of no-discharge zones is not addressed in this rulemaking.

Four commenters criticized §§ 159.309(b)(5) and (6) for being too general and recommendations were made that a more specific sampling regime be used. The Coast Guard disagrees with these comments and has made no changes to these sections. The language in §§ 159.309(b)(5) and (6) allows for current and future advances in effluent discharge technology and gives the Captain of the Port (COTP) discretion to tailor testing for individual vessels. Similarly, there were four recommendations that the Coast Guard develop a more specific Quality Assurance /Quality Control Plan (QA/QCP) than that prescribed in § 159.317(b). This section also has not been changed to ensure COTP flexibility in the face of varying vessel effluent discharge systems. The Coast Guard believes these concerns are more appropriately addressed during review of the QA/QCP and VSSP.

Four commenters recommended that the language of § 159.313(b) be expanded to include inspection of Marine Sanitation Devices, holding tanks, and other equipment. This equipment is already being examined by the Coast Guard and the existing language “general examination of the vessel” includes this specific equipment obviating the need for more specific direction to Coast Guard inspectors.

Four commenters recommended expansion of the Graywater Discharge Record Book minimum requirements to specify whether the effluent was treated or untreated, and, if treated, in what manner or with what specific technology or equipment. The Coast Guard agrees with this suggestion and has modified § 159.315 to reflect this change.

One commenter recommended that the requirement under § 159.317(a)(1) be modified to ensure QA/QCPs be uniformly applicable to all cruise ships. The Coast Guard agrees and the language of this section has been modified. In addition, the requirement for submission of a Vessel Specific Sampling Plan has been moved from this section to § 159.317(a)(3). The Coast Guard believes this change is necessary after observation of the startup of the 2001 cruise season. This change is intended to allow a third party contractor, hired to conduct the sampling, to develop a VSSP adequate for operations in the applicable waters of Alaska. Therefore, submission of the VSSP should occur within 30 days of each vessel's initial entry into the applicable waters of Alaska.

Four commenters recommended the self certification requirement under § 159.317(a)(2) be based on current samples from treated sewage and graywater effluents. The Coast Guard agrees and the language of this section has been modified to ensure that samples are coincident with the cruise vessel's window of time for annual self certification.

One commenter recommended a requirement be included in § 159.315 that copies of the Sewage and Graywater Discharge Record Book be submitted to the Coast Guard and Alaska Department of Environmental Conservation at regular intervals. The Coast Guard disagrees. The current language provides for maintenance of the Sewage and Graywater Discharge Record Book on board the vessel and that it be readily available for inspection. In addition, language under § 159.313(b) provides that a copy of any entry in the Sewage and Graywater Discharge Record Book may be made and the Master of the vessel may be required to certify that the copy is a true copy of the original entry. The Sewage and Graywater Discharge Record Book is an enforcement tool to ensure compliance with environmental laws and regulations. The Coast Guard has determined that maintenance of this record on board the vessel, with full access by the Coast Guard, is adequate to ensure compliance as mandated by Title XIV.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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). A draft Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT follows:

A Quality Assurance/Quality Control Plan (QA/QCP) with Vessel Specific Sampling Plan (VSSP) is required by these regulations to establish procedures for collecting and analyzing treated sewage and graywater samples from cruise vessels. During the summer 2000 voluntary cruise vessel sampling program a single QA/QCP, acceptable to the Coast Guard, was used by all 21 cruise vessels. A VSSP was then developed for each vessel. It is anticipated the same, or similar depending on the laboratory used, QA/QCP and VSSP will be used for subsequent summer cruise vessel seasons negating the need to develop new ones. The Coast Guard is not able to estimate the burden that may be associated with individual cruise vessel revisions to the QA/QCP and VSSP, if any.

The annual burden of creating and maintaining a Sewage and Graywater Discharge Record Book on 23 cruise vessels is expected to be $460. This estimate is for the cost of purchasing a record book and maintaining it onboard each vessel. Entries into the record book should be made during the normal routine of the engineering watch so no additional labor costs are expected.

During the summer 2000 cruise vessel voluntary sampling program, the cruise industry operating in Alaska spent an estimated $65,000 on sampling of cruise vessels while underway. An additional estimated $150,000 was spent in having the samples analyzed for conventional pollutants and the complete suite of priority pollutants listed in 40 CFR 401.15. The summer 2000 sampling program included two separate sampling events on 21 cruise vessels from all overboard treated sewage and graywater effluents and marine sanitation devices. In addition to the conventional pollutant suites, one of the two sampling events included samples drawn for a complete suite of priority pollutants analysis.

These regulations provide for a similar sampling and analysis regime with cost savings in some areas and offsetting cost increases in others. While the number of more costly priority pollutants analysis will decrease, the number of overall sampling events for conventional pollutants will likely increase. Also, the number of respondents is expected to increase from 21 to 23. Therefore, the annual burden for sampling and analysis under these regulations is estimated to be $215,000. When divided by the number of participants, the annual cost to each individual vessel is estimated to be $9,348. The estimated cost to each cruise vessel line is as follows:

The cost is based on two sampling events on each cruise vessel. One sample event would be required within 30 days of entering Alaska waters. The second sample event, although discretionary by the Coast Guard, will be taken from vessels that visit Alaskan waters at least four times a year. Additional samples and analysis may be required, along with the associated cost increase, should the initial sample results indicate noncompliance.

The Coast Guard is not able to estimate the costs that might be incurred if a cruise vessel cannot certify that their discharges meet the applicable standards, and does not have the capacity to hold all of its discharges while transiting the applicable waters of Alaska. In that scenario, it is believed that the cruise vessel would need to alter its cruise itinerary in order to leave the applicable Alaskan waters and enter the high seas, thus enabling the vessel to discharge. We asked for comments to help us estimate this cost, but none were received.

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

Because the population of affected cruise vessels are owned by entities that do not qualify as small entities, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule provides for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). As defined in 5 CFR 1320.3(c), “collection of information” includes reporting, record keeping, monitoring, posting, labeling, and other, similar actions. The title and description of the collections, a description of the respondents, and an estimate of the total annual burden follow. Included in the estimate is the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title : Sewage and Graywater Discharge Records for Certain Cruise Vessels Operating in Alaskan Waters.

Summary of the Collection of Information : The following information will be required to be collected by these regulations:

Need for Information: Compliance and enforcement of “Certain Alaskan Cruise Ship Operations” (Pub. L. 106-554).

Proposed use of Information: Regulatory oversight and compliance assurance.

Description of the Respondents : Master or other person having charge of each cruise vessel authorized to carry 500 or more passengers while operating in the waters of the Alexander Archipelago and the navigable waters of the United States within the State of Alaska and within the Kachemak Bay National Estuarine Research Reserve.

Number of Respondents: 23.

Frequency of Response: Periodically while operating in the waters described above.

Burden of Response: There are three separate record keeping requirements involved in this regulation. Each is addressed separately, and the estimated total burden follows:

1. Quality Assurance/Quality Control Plan (QA/QCP) with Vessel Specific Sampling Plan (VSSP) development costs.

A QA/QCP with VSSP is required by these regulations to establish procedures for collecting and analyzing treated sewage and graywater samples from cruise vessels. During the summer 2000 voluntary cruise vessel sampling program, a single QA/QCP acceptable to the Coast Guard, was used by all 21 cruise vessels. A VSSP was then developed for each vessel and sampling was conducted in compliance with these documents. It is anticipated the same, or similar, QA/QCP and VSSP will be used for subsequent summer cruise vessel seasons negating the need to develop a new QA/QCP or VSSP. The Coast Guard is not able to estimate the burden that may be associated with individual cruise vessel revisions to the QA/QCP or VSSP, if any.

2. Sewage and Graywater Discharge Record Book costs. The annual burden of creating and maintaining a Sewage and Graywater Discharge Record Book on 23 cruise vessels is expected to be $460. This estimate is for the cost of purchasing a record book and maintaining it onboard each vessel. Entries into the record book should be made during the normal routine of the engineering watch so no additional labor costs are expected.

3. Sample collection and analysis costs.

a. During the summer 2000 cruise vessel voluntary sampling program, the cruise industry operating in Alaska spent an estimated $65,000 on sampling of cruise vessels while underway. An additional estimated $150,000 was spent in having the samples analyzed for conventional pollutants and the complete suite of priority pollutants listed in 40 CFR 401.15. The summer 2000 sampling program included two separate sampling events on 21 cruise vessels from all overboard treated sewage and graywater effluents and marine sanitation devices. In addition to the conventional pollutant suites, one of the two sampling events included samples drawn for a complete suite of priority pollutants analysis.

These regulations provide for a similar sampling and analysis regime with cost savings in some areas and offsetting cost increases in others. While the number of more costly priority pollutants analysis will decrease, the number of overall sampling events for conventional pollutants will likely increase. Also, the number of respondents is expected to increase from 21 to 23. Therefore, the annual cost for sampling and analysis under these regulations is estimated to be $215,000. When divided by the number of participants, the annual cost to each individual vessel is estimated to be $9,348.

Estimated Total Annual Burden: The estimated total annual burden is $215,460.

As required by section 3507(d) of the Paperwork Reduction Act of 1995, the Coast Guard submitted a copy of this rule to OMB for its review of the collection of information.

The Coast Guard solicited public comment on the collection of information to: (1) Evaluate whether the information is necessary for the proper performance of the functions of the Coast Guard, including whether the information will have practical utility; (2) evaluate the accuracy of the Coast Guard's estimate of the burden of the collection, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection on those who are to respond, as by allowing the submittal of responses by electronic means or the use of other forms of information technology.

OMB has approved our collection of information and assigned to it OMB control number 2115-0647. This approval expires on December 31, 2001. Persons are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Under Executive Order 13132, section 3(b), the Coast Guard finds that a program monitoring effluent discharge from cruise ships transiting certain Alaskan waters is in the national interest, as evidenced by Congress in enacting “Title XIV—Certain Alaskan Cruise Ship Operations” as part of the Consolidated Appropriations Act of 2001 (Pub. L. 106-554). In that legislation, Congress empowered the Coast Guard to monitor wastewater discharges from cruise ships transiting certain Alaskan waters.

The sampling, testing and log-keeping program outlined in this regulation was taken from a similar program that was run on a voluntary basis during the summer of 2000. That program was one of the results of the Alaska Cruise Ship Initiative, which grew out of a working group composed of representatives from the cruise industry, the public, environmental groups, and state and federal government. The Coast Guard was one of the federal government representatives on that group. The working group was begun by the Commissioner of the Alaska Department of Environmental Conservation (ADEC) in December of 1999.

At the conclusion of the 2000 Alaskan cruise ship season, data from the voluntary wastewater sampling and testing program showed that none of the tested vessels were in full compliance with all federal performance standards for the discharge of treated sewage. This data, as well as data showing high levels of pollutants in graywater, spurred the legislation cited above. It also spurred a meeting between the Alaska governor, ADEC, the Coast Guard, and members of the cruise ship industry in November of 2000. At this meeting, the governor expressed his approval of the then-proposed Title XIV, and the greater authority it granted to the Coast Guard to protect Alaskan waters from pollutants.

This established cooperation between the Coast Guard and the State of Alaska, and the State's support of the legislation and voluntary testing program on which the regulation is based shows how the Coast Guard has consulted with State officials in accordance with Executive Order 13132, Section 3(b). The Coast Guard will continue to consult the State by sharing the results of sample tests with the State, as well as requiring that discharge logbooks be kept in a format readable by the Alaskan Department of Environmental Conservation.

Section 6(c)(2) of Executive Order 13132, requires, that if the agency promulgating the regulations intends that they have preemptive effect, it state that intention and the rationale on which it is based. Accordingly, the following statement is provided:

Section 1411 (b) Pub. L. 106-554 specifies that, “[n]othing in this Title shall in any way affect or restrict, or be construed to affect or restrict, the authority of the State of Alaska or any political subdivision thereof—(1) to impose additional liability or additional requirements; * * *.” This language, was drafted so as to be identical to the savings clause in Section 1018 of the Oil Pollution Act of 1990, which was recently interpreted by the Supreme Court in the case of U.S. v. Locke, 120 S.Ct. 1135 (Mar. 6, 2000). The Court held that a state could regulate regarding actual discharges, but could not regulate in the areas of design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, or manning of vessels. In the Department of Transportation's letter transmitting Title XIV of Pub. L. 106-554 to Congress, we explained that conference report language on Title XIV should explain that preemption for this bill would work in the same manner as in OPA 90. We also discussed this position with the Alaska Attorney General's Office.

Accordingly, these rules are construed in the same manner as OPA 90, as described in the Department of Transportation's views letter referred to above. Thus, any of these regulations that have the effect of regulating a cruise vessel's design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, manning and casualty reporting have preemptive effect under existing U.S. laws and treaties to which the United States is a party. However, state legislation regulation actual discharges only is not preempted by these regulations.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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 create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 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 considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(d), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. This proposed regulation would require operators of cruise vessels carrying 500 or more passengers in Alaskan waters to document treated sewage and graywater discharges to ensure that they comply with effluent discharge standards. The content of effluent discharges reflects compliant equipment operations. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We have analyzed this 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.

In accordance with 5 U.S.C. 553, a Notice of Proposed Rulemaking (NPRM) was not published for this regulation and good cause exists for making it effective in less than 30 days after Federal Regulation publication. Publishing an NPRM and delaying this action's effective date would be contrary to the public interest since immediate action is needed to protect the vessels and mariners from the hazards associated with preparation of the Japanese Fisheries High School Training Vessel EHIME MARU for relocation. Details were not available 30 days prior to the event, thus, there was insufficient time to publish a proposed rule in advance of the event or to provide a delayed effective date. Under these circumstances, following normal rulemaking procedures would be impracticable.

On February 9, 2001, the Japanese Fisheries High School Training Vessel EHIME MARU was struck by the submarine USS GREENEVILLE (SSN 772) approximately 9 nautical miles south of Diamond Head on the island of Oahu, Hawaii. The EHIME MARU sank in approximately 2,000 feet of water. At the time of the sinking, 26 of the 35 crewmembers were successfully rescued. An extensive search failed to locate additional personnel and it is assumed that some, or all, of the nine missing crewmembers were trapped inside the vessel. The EHIME MARU is resting upright on the seafloor at position 21°-04.8′ N, 157°-49.5′ W. The U.S. Navy plans to prepare the EHIME MARU for transportation to shallow water by removing all booms, antennas, or other attached equipment that may interfere with this evolution. To protect vessels and mariners from the hazards associated with preparatory operations, the U.S. Coast Guard has established a temporary safety zone, with a radius of 1 nautical mile, centered on the vessels present location of 21°-04.8′ N, 157°-49.5′ W. This zone extends from the surface of the ocean to the bottom. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Honolulu, HI. The safety zone will be enforced by representatives of the Captain of the Port Honolulu. The Captain of the Port may be assisted by other federal agencies.

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 U.S. Coast Guard expects the economic impact of this action to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This expectation is based on the short duration of the zone and the limited geographic area affected by it.

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

The U.S. Coast Guard certifies under 5 U.S.C. 605(b) that this regulation will not have a significant economic impact on a substantial number of small entities. No small business impacts are anticipated due to the small size of the zone and the short duration.

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

The U.S. Coast Guard has analyzed this rule under Executive Order 13132, and has determined this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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.

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This type of construction project requires specific river conditions that are difficult to predict. Publishing a NPRM and delaying its effective date would be contrary to public interest since immediate action is needed to ensure that the project can be completed under optimal conditions. Reinforcement of the Vaucluse Trenchfill is also immediately needed to maintain the integrity of the right descending bank of the Mississippi River at the project site.

Due to bendway weir construction in the vicinity of the Vaucluse Trenchfill, LMR mile 533, the Coast Guard is establishing a safety zone for the Mississippi River from mile 531.3 to 537.0. Beginning on June 11, 2001, navigation will be closed every day from 6 a.m. to 6 p.m. (CDT) within the aforementioned zone. No vessels may enter or remain within this safety zone unless specifically authorized by the Captain of the Port Memphis. Vessels shall contact the M/V PATRICK on channel 13 or 16 for closure information and passing instructions. This safety zone will remain in effect until the construction project is completed. The contract construction time is approximately 83 days. This zone is needed to allow the Army Corps of Engineers' contractors to strengthen the integrity of the Vaucluse Trenchfill.

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 is unnecessary. The regulation will be in effect for a long period of time, but each day during night hours river traffic will be unrestricted, minimizing the impacts on routine navigation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The impacts on small entities are expected to be minimal.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), 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 businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

This rule will not effect a taking of private property or otherwise have taking implications under E.O. 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 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.

Under the formula mandated by 10 U.S.C. 16131(b) for fiscal year 2001, the rates of basic educational assistance under the Montgomery GI Bill—Selected Reserve payable to students pursuing a program of education full time, three-quarter time, and half time must be increased by 3.0%, which is the percentage by which the total of the monthly Consumer Price Index-W for July 1, 1999, through June 30, 2000, exceeds the total of the monthly Consumer Price Index-W for July 1, 1998, through June 30, 1999.

10 U.S.C. 16131(b) requires that full-time, three-quarter time, and half-time rates be increased as noted above. In addition, 10 U.S.C. 16131(d) requires that monthly rates payable to reservists in apprenticeship or other on-the-job training must be set at a given percentage of the full-time rate. Hence, there is a 3.0% raise for such training as well.

10 U.S.C. 16131(b) also requires that the Department of Veterans Affairs (VA) pay reservists training less than half time at an appropriately reduced rate. Since payment for less than half-time training became available under the Montgomery GI Bill—Selected Reserve in fiscal year 1990, VA has paid less than half-time students at 25% of the full-time rate. Changes are made consistent with the authority and formula described in this paragraph.

Nonsubstantive changes also are made for the purpose of clarity.

The changes set forth in this final rule are effective from the date of publication, but the changes in rates are applied from October 1, 2000, in accordance with the applicable statutory provisions discussed above.

Substantive changes made by this final rule merely reflect statutory requirements and adjustments made based on previously established formulas. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date under the provisions of 5 U.S.C. 552 and 553.

The Secretary of Defense, the Commandant of the Coast Guard, and the Secretary of Veterans Affairs hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule directly affects only individuals and does not directly affect small entities. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

There is no Catalog of Federal Domestic Assistance number for the program affected by this final rule.

The Service Members Occupational Conversion and Training Act (SMOCTA) (Subtitle G, Pub. L. 102-484) established a job-training program for some veterans. The program helped these veterans enter the civilian workforce through training in a stable and permanent position that involved significant training. VA made monthly payments to employers who employed and trained eligible veterans in these jobs, and made a final lump sum payment when the trainee had completed the training program and been employed for four months. The payments aided employers in defraying the necessary costs of training.

Based on statutory authority and regulations, employers may no longer apply for the monthly payments and may no longer apply for the lump sum payment. No one is training under SMOCTA, and VA is making no payments under that Act. The statutory date for beginning training has passed, and the last year in which funds were appropriated for this program was Fiscal Year 1995. There is no need for regulations to implement SMOCTA, nor is there any need for other regulations that refer to SMOCTA.

The changes made by this final rule are nonsubstantive changes. This final rule merely removes unnecessary provisions that relate only to a training and payment program for which there no longer is statutory authority for training or payment. Accordingly, there is a basis for dispensing with prior notice and comment and a delayed effective date under the provisions of 5 U.S.C. 552 and 553.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The Secretary of Defense, the Commandant of the Coast Guard, and the Secretary of Veterans Affairs hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not cause employers to make changes in their activities because no one is training under SMOCTA. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of §§ 603 and 604.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

There is no Catalog of Federal Domestic Assistance number for the program that this final rule affects.

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

On January 10, 2001 (66 FR 1927), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from the following party. Brad Poirez, ICAPCD; telephone call on February 12, 2001.

The comment and our response is summarized below.

Comment: ICAPCD commented that ICAPCD Rule 416 was incorrectly referenced in the SUMMARY section of the proposed rule.

Response: EPA concurs and ICAPCD Rule 416 is correctly referenced in the SUMMARY section of today's final rule.

No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

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

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

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

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 September 24, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that meet certain Federal criteria. In implementing the operating permits programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permits program is to improve enforcement by issuing each source a permit that consolidates all the applicable CAA requirements into a Federally enforceable document. By consolidating all the applicable requirements for a source in a single document, the source, the public, and regulators can more easily determine what CAA requirements apply to the source and whether the source is in compliance with those requirements.

Sources required to obtain an operating permit under the title V program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter; those that emit 10 tons per year or more of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the National Ambient Air Quality Standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential to emit 50 tons per year or more of volatile organic compounds or nitrogen oxides.

The State of Alaska (Alaska or State) originally submitted its application for the title V air operating permits program to EPA in May 1995.

Where an operating permits program substantially, but not fully, meets the criteria outlined in the implementing regulations codified in 40 Code of Federal Regulations (CFR) part 70, EPA is authorized to grant interim approval contingent on the state revising its program to correct the deficiencies. Because the operating permits program originally submitted by Alaska in 1995 substantially, but not fully, met the requirements of part 70, EPA granted interim approval to Alaska's program in an action published on December 5, 1996 (61 FR 64463). The interim approval notice identified the 19 remaining conditions that Alaska must meet in order to receive full approval of its title V air operating permits program.

This document describes the changes Alaska has made to its operating permits program since we granted Alaska's program interim approval and the action EPA is taking in response to those changes.

On June 2, 1998, Alaska sent a letter to EPA addressing all 19 of the interim approval issues and requesting full program approval of the State's air operating permits program. EPA has reviewed the program revisions submitted by Alaska and has determined that its operating permits program now qualifies for full approval. This section describes the interim approval issues identified by EPA in granting the Alaska program interim approval and the changes Alaska has made to address those issues.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska definition of ‘regulated air contaminant’ in AS 46.14.990(21) is inconsistent with the EPA definition of the term ‘regulated air pollutant’ in 40 CFR 70.2 in that it does not adequately cover pollutants required to be regulated under section 112(j) of the Act. As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its definition of ‘regulated air contaminant’ is consistent with EPA's definition of ‘regulated air pollutant’ in 40 CFR 70.2.” Alaska, in its June 2, 1998, submittal stated that “[a]ll of the provisions of 40 CFR part 63, subpart B which implement section 112(j) and relate to operating permits are either adopted by reference, or included in the adopting language of 18 AAC 50.040(c)(2). 18 AAC 50.040(c)(2)(B) states that the provisions of 40 CFR part 63, subpart B apply to the facility on the same date that a pollutant would become a ‘regulated air pollutant’ under the federal definition. AS 46.14.280(a)(3)(B) requires a permit to be revised for a 112(j) equivalent emission limitation in the same manner as for any other new federal standard.” EPA believes that 18 AAC 50.040(c)(2) and AS 46.14.280(a)(3)(B) support Alaska's assertion and resolve this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska definition of ‘applicable requirement’ does not include all of the EPA regulations implementing title VI (40 CFR part 82) but only subparts B and F. Although EPA has proposed to revise 40 CFR part 70 to limit the definition of ‘applicable requirement’ to only those provisions promulgated under sections 608 and 609 of the Act (which EPA has promulgated in 40 CFR part 82, subparts B and F), this proposed revision is not yet adopted. Should EPA revise part 70 as proposed, Alaska's rules will be consistent and no revisions will be needed. However, if EPA does not revise part 70 as proposed, Alaska must adopt and submit appropriate revisions as a condition of interim approval.” Alaska, in its June 2, 1998, submittal, provided documentation that its regulations at 18 AAC 50.040(d) had been amended to broaden the adoption by reference to include all of Part 82. The amendment was effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “Alaska has not adopted by [sic] the requirements of 40 CFR part 61, subpart I (radionuclide NESHAP for facilities licensed by the Nuclear Regulatory Commission). EPA is requiring, as a condition of full approval, that Alaska update its incorporation by reference to include all of the NESHAP that currently apply to title V sources in Alaska.” This issue was made moot by EPA publication of a rescission of subpart I in the Federal Register dated December 30, 1996, 61 FR 68971.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program improperly exempts insignificant sources subject to applicable requirements from monitoring, recordkeeping, reporting, and compliance certification requirements. Alaska must eliminate this exemption as a condition of full approval.” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations to remove the exemption of insignificant sources from these requirements. The revised rules, at 18 AAC 50.335(q)(5) and (6), and 18 AAC 50.350(m), “specify compliance certification for IEUs based on reasonable inquiry, and, if necessary to assure compliance with air quality control requirements identified in the permit, monitoring, record keeping, or reporting.” The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not contain a provision implementing the part 70 requirement that the permitting authority must include terms and conditions, if the permit applicant requests them, for trading of emissions increases and decreases in the permitted facility, to the extent that the applicable requirements provide for trading such increases without a case-by-case approval of each emissions trade. See 40 CFR 70.6(a)(10). As a condition of full approval, Alaska must ensure that its program includes the necessary provisions to meet the requirements of 40 CFR 70.6(a)(10).” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.335(h), 18 AAC 50.350(d)(3), and 18 AAC 50.350(e)(4), to allow for such trading. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “Part 70 requires each title V permit to contain a provision allowing the permitting authority or an authorized representative, upon presentation of credentials and other documents as may be required by law, to perform specified inspection and entry functions. See 40 CFR 70.6(c)(2). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its inspection and entry authority meets the requirements of 40 CFR 70.6(c)(2) and imposes no greater restrictions on the State's inspection authority than exist under federal law.” Alaska, in its June 2, 1998, submittal, provided an opinion from its Attorney General's Office addressing inspection and entry requirements associated with Alaska's title V program. The opinion notes that ADEC's operating permit regulations, at AS 46.14.140(a)(4)(C), now require the inclusion of a standard permit condition addressing inspection and entry. The opinion states that “[t]his standard provision, requiring the permittee to consent to entry and inspection for specified purposes will be contained in all operating permits.” Based on this opinion, EPA concludes that consent to entry for the purposes specified in AS 46.14.140(a)(4)(C) is effectively granted at any source possessing a title V permit issued by Alaska. In addition, Attorney General's opinion states that Alaska's inspection and entry authority is not more restrictive than that under federal law. Specifically, the Attorney General's Office opined that: (1) Under the Alaska program, operating permit holders have no “reasonable expectation of privacy” as to regulated subject matter and that warrantless search requirements are permissible; (2) if consent to entry and inspection is denied, a warrant can be easily obtained; and (3) Alaska's consent requirements “do not constrain traditional exceptions to warrant requirements, and these exceptions are recognized in Alaska.” EPA is satisfied that Alaska's inspection and entry authority imposes no greater restrictions on the State's inspection authority than exist under federal law.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not require the submission of progress reports, consistent with the applicable schedule of compliance and 40 CFR 70.5(c)(8), to be submitted in accordance with the period specified in an applicable requirement. See 40 CFR 70.6(c)(4). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its program complies with the requirements of 40 CFR 70.6(c)(4).” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.335(i) and 18 AAC 50.350(k)(3) to require applicants to submit proposed permit terms that include more frequent progress reports, if required by the applicable requirement, and to require permits to contain a requirement for more frequent progress reports, if required by the applicable requirement. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not meet the requirements of part 70 that a permitting program contain requirements for compliance certification with terms and conditions contained in the permit, including emissions limitations, standards or work practices. See 40 CFR 70.6(c)(5). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its program complies with the requirements of 40 CFR 70.6(c)(5).” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.335(q)(5), 18 AAC 50.350(j), and 18 AAC 50.350(m), to ensure that compliance certifications would be required for all permit terms and conditions. EPA's main concern, as identified in the September 1996 Federal Register proposing final interim approval for Alaska's Air Operating Permits Program, had been inclusion of requirements to certify compliance with such terms as monitoring, recordkeeping, reporting and compliance plans. Alaska had already revised its regulations to mostly include these by the time the December 5, 1996, Federal Register had been published. The current revisions are mostly fine tuning, including compliance certification for insignificant sources, and accounting for provisions established through administrative, minor, or major permit revisions. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska provisions for general permits fail to comply with the requirements of part 70 in one respect. The Alaska provisions do not require that applications for general permits which deviate from the requirements of 40 CFR 70.5 otherwise meet the requirements of title V. See 40 CFR 70.6(d)(2). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that applications for general permits meet the requirements of title V.” Alaska, in its June 2, 1998, submittal, submitted documentation that it had revised its regulations at 18 AAC 50.380 (most importantly at 50.380(c) and (d)) to identify what information had to be in the applications for General Permits. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this action.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not comply with the requirement of part 70 with respect to the provisions for an affirmative defense to an action brought for noncompliance with a technology-based limitation in a title V permit. The Alaska regulations include a definition of ‘technology-based standard’ which is broader than allowed by part 70 and the Alaska program gives a permittee up to one week after the discovery of an exceedance to provide ADEC with written notice rather than within two working days as required by 40 CFR 70.6(g)(3)(iv). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its emergency provisions are consistent with the requirements of 40 CFR 70.6(g).” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.990(87) to revise its definition of “technology-based standard” to be consistent with part 70. Alaska also revised 18 AAC 50.235(a) to require written notice of an exceedance due to an unavoidable emergency, malfunction, or nonroutine repair, within two days, rather than within one week. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's actions resolve these issues.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not comply with the part 70 ‘off-permit’ provisions which require the permittee to keep a record at the facility describing each off-permit change and to provide ‘contemporaneous’ notice of each off-permit change to EPA and the permitting authority. See 40 CFR 70.4(b)(14). Although EPA has proposed to revise 40 CFR part 70 to eliminate the off-permit requirements, this proposed revision is not yet adopted. Should EPA revise part 70 as proposed, Alaska's rules will be consistent with part 70 in this respect and no revisions will be needed. However, if EPA does not revise part 70 as proposed, Alaska must ensure that its program requires notice and records for all off-permit changes as a condition of full approval.” EPA has not revised part 70 as proposed with respect to off-permit changes. Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.365(b) to show that the requirements of (b), including the recordkeeping and notification requirements, applied to all “not insignificant” sources. 18 AAC 50.365(b), as amended, is consistent with the language of 40 CFR 70.4(b)(14). The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not require the permitting authority to provide and send to EPA, and to any other person who requests it, a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). See 40 CFR 70.7(a)(5). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its program satisfies the requirements of 40 CFR 70.7(a)(5).” This issue was inadvertently identified as an Interim Approval issue in the December 5, 1996, Federal Register . Although identified in the September 1996 proposed interim approval of the Alaska Air Operating Permits Program as an approval issue, Alaska revised its regulations at 18 AAC 50.340(j) prior to EPA's final interim approval of the Alaska program. EPA is satisfied that section 340(j) adequately provides for the development of a Statement of Basis.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program, which allows alterations in the identification of equipment or components that have been replaced with equivalent equipment or components to be made by administrative amendment, does not comply with the part 70 provisions which authorize States to allow certain ministerial types of changes to title V permits to be made by administrative amendment. See 40 CFR 70.7(d). As a condition of full approval, Alaska must revise 18 AAC 50.370(a)(5)(D) to expand the prohibition to include modifications and reconstructions made pursuant to 40 CFR parts 60, 61, and 63, or to eliminate 18 AAC 50.370(a)(5) from the list of changes that may be made by administrative amendment.” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.370(a)(5)(D) to prohibit administrative revisions for equipment which has been reconstructed or modified under 40 CFR parts 60, 61, and 63. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not comply with the part 70 provisions which require States to establish procedures for minor permit modifications which are substantially equivalent to those set forth in 40 CFR 70.7(e), for several reasons. First, the Alaska program does not ensure that ‘every significant change in existing monitoring permit terms or conditions and every relaxation of reporting or recordkeeping permit terms shall be considered significant.’ See 40 CFR 70.7(e)(4). Second, the Alaska program does not ensure that an application for a permit modification must include a description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs. 40 CFR 70.7(e)(2)(ii)(A). Finally, the Alaska program fails to include provisions which allow minor permit modification procedures to be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches to the extent that such minor permit modification procedures are explicitly provided for in an applicable implementation plan or in applicable requirements promulgated by EPA. See 70.7(e)(2)(B). As a condition of full approval, Alaska must demonstrate to EPA that its program includes the necessary provisions to meet the requirements of 40 CFR 70.7(e)(2)(B).” Alaska, in its June 2, 1998, submittal, provided documentation that: (a) it revised its regulations at 18 AAC 50.375(a)(1)(D) to more closely track part 70 language in excluding from the minor permit revision process new terms or conditions which would involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit, or relax an existing reporting or recordkeeping requirement; (b) it revised its regulations at 18 AAC 50.375(b) to clearly identify that the permittee, for minor permit modifications, would describe each change, the emissions resulting from the change, and any new requirements which would apply as a result;” (c) the third issue was a moot issue because the Alaska program does not include economic incentives, marketable permits, or emissions trading. EPA in its September 1996 Federal Register proposing interim approval of the Alaska Air Operating Permits Program, indicated that there were instances where part 63 standards allowed for the minor modification permit procedures involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches. However, on revisiting the issue, EPA was unable to locate any part 63 standards which include such a provision. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's actions resolve these issues.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not conform with the provisions of part 70 which allow a permitting authority to process as a group certain categories of applications for minor permit modifications at a single source in that the Alaska program does not contain any thresholds for determining whether minor permit modifications may be processed as a group. See 40 CFR 70.7(e)(3). As a condition of full approval, Alaska must demonstrate that its group processing procedures are consistent with the requirements of 40 CFR 70.7(e)(3).” Alaska, in its June 2, 1998, submittal, documented its removal of the group processing of minor permit modifications provision from its regulations at 18 AAC 50.375(b)(5), (c), (d), and (e). Group processing of such modifications was optional under at 40 CFR 70.7(e)(3) so this is an acceptable resolution of this issue. These revisions were effective June 14, 1998.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not address the part 70 requirement that a State provide for a review process that will assure completion of review of the majority of significant permit modifications within 9 months after receipt of a complete application. 40 CFR 70.7(e)(4)(ii). As a condition of full approval, Alaska must provide assurances that its program is designed and will be implemented so as to complete review on the majority of significant permit modifications within this timeframe.” In the cover letter to the June 2, 1998, Michele Brown, Commissioner of the State of Alaska, Department of Environmental Conservation, committed to “allocating sufficient resources in the Air Quality Maintenance Section to issue the majority of Significant Permit Revisions within 9 months of receiving complete applications.” EPA is satisfied that this resolves the issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program provisions for reopenings fail to comply with part 70 in several respects. First, the Alaska program does not require reopening in the event that the effective date of a new applicable requirement is later than the permit expiration date and the permit has been administratively extended. See 40 CFR 70.7(f)(1)(i). Second, the Alaska program does not comply with part 70 in that the Alaska program merely authorizes ADEC to reopen a permit under specified circumstances, where as part 70 requires that a permit be reopened if ADEC or EPA determine such circumstances exist. See 40 CFR 70.7(f)(2)(iii). Third, the Alaska program also fails to contain required procedures in the event of a reopening for cause by EPA. See 40 CFR 70.7(g)(2) and (4). Finally, the Alaska program does not include provisions assuring that reopenings are made as expeditiously as practicable. See 40 CFR 70.7(f)(2). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that its provisions for reopenings comply with the requirements of 40 CFR 70.7(f) and (g).” Alaska, in its June 2, 1998, submittal, provided documentation that: (1) It had revised its regulations at 18 AAC 50.341(a), (b), (f), and (g) to provide that Alaska would reopen permits within 18 months after the promulgation by EPA of a new requirement applicable to the facility; (2) it had revised its regulations at 18 AAC 50.341(a), (c), (f), and (g) to provide that Alaska would be required, rather than merely authorized, to reopen permits under specified circumstances; (3) it had revised its regulations at 18 AAC 50.341(a), (d), (e), (f), and (g) to specify procedures in the event of reopening for cause by EPA. To resolve the fourth part of this issue, Michele Brown, in the June 2, 1998, cover letter submitting the program revisions, committed “to allocating sufficient resources in the Air Quality Maintenance Section to complete required permit re-openings for cause as expeditiously as practicable.” The revisions were effective June 14, 1998. EPA is satisfied that Alaska's actions resolve these issues.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not prohibit issuance of a permit if EPA objects to the permit after EPA's 45-day review period (i.e., in response to a petition). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that Alaska's provisions regarding public petitions to EPA comply with the requirements of 40 CFR 70.8(d).” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations at 18 AAC 50.340(g)(2)(B) adding the appropriate prohibitory language. The revisions were effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

EPA, in its December 5, 1996, Federal Register , stated that “[t]he Alaska program does not conform to the part 70 requirement that the contents of a title V permit not be entitled to confidential treatment. See 40 CFR 70.4(b)(3)(viii). As a condition of full approval, Alaska must demonstrate to EPA's satisfaction that nothing in a title V permit will be entitled to confidential treatment.” Alaska, in its June 2, 1998, submittal, provided documentation that it had revised its regulations by adding 18 AAC 50.350(n) which prohibits the inclusion of “information that is protected as a trade secret under AS 45.50.910-45.50.945.” The revision was effective June 14, 1998. EPA is satisfied that Alaska's action resolves this issue.

Subsequent to interim approval of Alaska's title V program, the State legislature enacted Alaska Statute 09.25.450 (herein “Audit Law”), which establishes a privilege for certain information contained in environmental audit reports conducted by facilities, and also establishes immunity from enforcement for certain violations that are voluntarily reported. Because some states have enacted audit laws that have significantly altered their enforcement authorities, EPA in 1997 issued a guidance document entitled “Statement of Principles, Effect of State Audit Immunity/Privilege Laws on Enforcement Authority for Federal Programs” (February 14, 1997) (“Statement of Principles”) to guide the Agency's review of the impact of such laws for purposes of approval or authorization of federal programs. EPA evaluated Alaska's Audit Law with regard to the Statement of Principles to determine the extent to which the required title V enforcement authorities may be impacted.

As a part of this examination, EPA requested that the State provide an opinion from its Attorney General's Office addressing the interrelationship of the Audit Law and the state's enforcement authorities required for approval under part 70. Alaska provided such an opinion, dated March 14, 2000, signed by Assistant Attorney General Christopher Kennedy (herein “Kennedy Opinion”). 1 This opinion supplements an April 28, 1997, opinion, signed by Attorney General Bruce Botelho, that addresses the Audit Law more generally. The latter opinion, though a useful interpretation of the Audit Law, was not drafted in response to an EPA request and does not explicitely address EPA program approval requirements. EPA is relying upon both of these opinions in issuing today's full approval action.

EPA finds that the Audit Law, as interpreted by the two Attorney General opinions, does not affect Alaska's enforcement authorities such as to preclude the granting of full approval to the State's Title V program. The major points of EPA's reasoning in making this finding are summarized below.

The Kennedy Opinion adopts an analysis similar to that used by the New Hampshire Attorney General's Office in interpreting that State's audit law as being consistent with the part 70 approval requirements. 2 The Kennedy Opinion addresses each of the points raised in the New Hampshire opinion, and concludes that Alaska's Audit Law is similarly structured so as to not impede the exercise of state enforcement authorities necessary for approval under part 70.

As EPA has noted in the context of its own self-disclosure policy (60 FR 66710, Dec. 22, 1995), the Agency is, as a matter of policy, opposed to the creation of a privilege for information related to violations of federal environmental laws. As a matter of state program approval, EPA's Statement of Principles addresses privileges created under state audit laws and notes that such laws must not impede a state's ability to obtain information needed to identify noncompliance and criminal conduct. Specifically, in the present context, a state must be able to gather information as required under part 70 and must preserve the right of the public to obtain information about noncompliance, report violations, and pursue enforcement under the Clean Air Act's citizen enforcement provisions. Finally, an audit law privilege may not apply in a criminal proceeding.

With regard to the privilege provisions of the Audit Law, the Kennedy Opinion states that the Audit Law would not threaten the State's ability to discover title V permit violations. This is in part because, as required by part 70, Alaska's program requires reporting of title V permit violations. Thus, the Audit Law's privilege and immunity provisions, applying as they do only to “voluntary” assessments of compliance, do not extend to title V permit violations uncovered by compliance auditing that is mandated by the Clean Air Act and the Title V regulations. Moreover, the Audit Law privilege does not extend to information required to be collected, developed, maintained, or reported under an environmental law. AS 09.25.460(a)(1). The Audit Law privilege does not apply in criminal proceedings. AS 09.25.450(a).

The Statement of Principles also addresses the possible effects of a state audit law upon a state's required authority to assess civil and criminal penalties. In short, where title V program approval is concerned, a state audit law must not impede the state's authority to recover civil penalties for significant economic benefit, repeat violations, violations of judicial and administrative orders, violations resulting in serious harm, or violations that may present imminent and substantial endangerment. The audit law also must not impede a state's authority to collect criminal fines and/or sanctions for knowing violations.

The Kennedy Opinion explains that the Audit Law excludes from its coverage any violation that result in or poses an imminent and present threat of substantial injury to people, property, or the environment. AS 09.25.465(a)(2), 09.25.475(b). Moreover, as noted above, violations of a title V permit would generally not qualify for coverage under the Audit Law, to the extent they are discovered during the course of an audit mandated by the Clean Air Act or applicable regulations. The Kennedy Opinion notes that the Audit Law expressly excludes from coverage violations of administrative or court orders. AS 09.25.480(b).

Regarding repeat violations and economic benefit, which are not explicitly addressed in the Kennedy Opinion, EPA notes that, for the former, the Audit Law's immunity provisions do not apply where there has been a pattern of same or similar violations by the facility or associated facilities within the 3 years preceding the violation for which the facility seeks coverage under the Audit Law. AS 09.25.480(a)(1)(B). Regarding economic benefit, the Audit Law's immunity provisions do not apply where the facility has realized substantial economic savings as a result of its noncompliance. AS 09.25.480(a)(3).

EPA finds that the Alaska Audit Law, as interpreted by the two Attorney General opinions submitted by the State, is sufficiently limited in scope so as not to preclude full approval of the State's title V program. It is EPA's intent to observe how the Audit Law is implemented in practice and how it is interpreted in state courts and administrative venues. If the evidence suggests that any of the key findings made today are incorrect, EPA may in the future revisit the effect of the Audit Law on the adequacy of Alaska's title V program.

EPA is granting full approval of the State of Alaska's operating permits program. This approval does not extend to “Indian Country,” as defined in 18 U.S.C. 1151. See 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 55815-55818; 59 FR 42552, 42554 (August 18, 1994).

EPA has reviewed the State of Alaska's submittal and has determined that its operating permits program now qualifies for full approval. Accordingly, EPA is taking final action to fully approve Alaska's air operating permits program.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to grant full approval of the title V operating permits program submitted by the State of Alaska should adverse comments be filed. This rule will be effective September 24, 2001 without further notice unless the Agency receives adverse comments by August 27, 2001.

If EPA receives such comments, then EPA will publish a notice withdrawing this final rule and informing the public that this rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 24, 2001 and no further action will be taken on the proposed rule.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it 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, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. 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 State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program 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 this is not a “major” rule as defined by 5 U.S.C. 804(2), EPA will not submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register , as specified in the Congressional Review Act, 5 U.S.C. 801 et seq.

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 September 24, 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 CAA section 307(b)(2).

Throughout this document, the words “we,” “us,” or “our” means the Environmental Protection Agency (EPA).

Areas meeting the requirements of section 107(d)(4)(B) of the Clean Air Act (CAA or Act) were designated nonattainment for PM-10 by operation of law and classified “moderate” upon enactment of the 1990 Clean Air Act Amendments. See generally 42 U.S.C. 7407(d)(4)(B). In addition, pursuant to section 107(d)(3) of the CAA, EPA is authorized to redesignate areas as nonattainment for PM-10 on the basis of air quality data, planning and control considerations, or any other air quality-related considerations that EPA deems appropriate. In 1991, EPA notified the Governor of Oregon that, because of recorded violations of the 24-hour PM-10 standard in the Oakridge area that occurred after January 1, 1989, EPA believed that the area's PM-10 designation should be revised to nonattainment. See 56 FR 16724 (April 22, 1991). After Oregon submitted additional information regarding the designation for the Oakridge area and after notice and an opportunity for public comment, EPA designated the Oakridge area nonattainment for PM-10 effective January 20, 1994. See 58 FR 67334 (December 21, 1993).

As a newly designated PM-10 nonattainment area, the Oakridge area was classified as a moderate nonattainment area by operation of law. See CAA section 188(a). Pursuant to section 188(c)(1) of the Act, the attainment date for the Oakridge area was to be no later than the end of the sixth calendar year after the area was designated nonattainment. Because the Oakridge area was designated nonattainment for PM-10 effective January 20, 1994, the attainment date for the Oakridge area is December 31, 2000.

Pursuant to sections 179(c) and 188(b)(2) of the Act, we have the responsibility of determining within six months of the applicable attainment date whether, based on air quality data, PM-10 nonattainment areas attained the PM-10 NAAQS by that date. Determinations under section 179(c)(1) of the Act are to be based upon the area's “air quality as of the attainment date.” Section 188(b)(2) is consistent with this requirement.

Generally, we determine whether an area's air quality is meeting the PM-10 NAAQS for purposes of section 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations (NAMS) in the nonattainment areas and entered into the EPA Aerometric Information Retrieval System (AIRS). Data entered into the AIRS has been determined to meet federal monitoring requirements (see 40 CFR 50.6, 40 CFR part 50, appendix J, 40 CFR part 53, 40 CFR part 58, appendix A and B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meet the federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment of the annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration over a three-year period (for example 1998, 1999, and 2000 for areas with a December 31, 2000 attainment date) is equal to or less than 50 micrograms per cubic meter (ug/m3). Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM-10 concentrations greater than 150 ug/m3. The 24-hour standard is attained when the expected number of days with levels above 150 ug/m3 (averaged over a three-year period) is less than or equal to one. Three consecutive years of air quality data are generally required to show attainment of the annual and 24-hour standards for PM-10. See 40 CFR part 50 and appendix K.

After the Oakridge area was designated nonattainment for PM-10, the Lane Regional Air Pollution Authority (LRAPA), in cooperation with local officials, developed a control strategy that consisted of a residential wood burning combustion program. The program included public education and outreach efforts on how to burn wood with reduced emissions as well as a wood stove curtailment program designed to reduce wood burning during periods of adverse meteorology. On March 15, 1999, EPA took direct final action approving the PM-10 SIP for Oakridge. See 64 FR 12751.

As discussed above, 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. For an area such as Oakridge, with a December 31, 2000 attainment date, EPA considers the data reported for calendar years 1998, 1999, and 2000.

LRAPA has established one PM-10 SLAMS monitoring site in the Oakridge PM-10 nonattainment area at 47674 School Street. LRAPA began monitoring for PM-10 at that site in 1989. The site operated in 1989 through 2000. The monitoring site meets EPA SLAMS network design and siting requirements, set forth at 40 CFR part 58, appendices D and E, and continues to monitor for PM-10.

There were no exceedences of the 24-hour PM-10 standard in the years 1998, 1999, and 2000. Therefore, the expected exceedence rate is 0.0, which shows attainment of the 24-hour PM-10 standard. The average of the annual PM-10 concentration averaged over the three years prior to the attainment date (1998, 1999, and 2000) is 19.4 ug/m3. This concentration is below the level of the annual standard of 50 ug/m3. Therefore, EPA finds that the Oakridge area attained the PM-10 standards by the attainment date of December 31, 2000.

This finding of attainment should not be confused, however, with a redesignation to attainment under CAA section 107(d) because Oregon has not, for the Oakridge area, submitted a maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignations to attainment. The designation status in 40 CFR part 81 will remain moderate nonattainment for the Oakridge PM-10 nonattainment area until such time as Oregon meets the CAA requirements for redesignations to attainment.

Under Executive Order 12866, “Regulatory Planning and Review” (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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001). Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities because it merely makes a determination based on air quality data and does not impose any requirements. This action does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it does not impose any enforceable duties.

This action also does not have tribal implications because it will 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it 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, “Federalism” (64 FR 43255, August 10, 1999). The action merely makes a determination based on air quality data and does not impose any requirements and therefore does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act.

This action also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under Executive Order 12866.

This action does not involved 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. In addition, this action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Because this in not a “major” rule as defined by 5 U.S.C. 804(2), EPA will not submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register , as specified in the Congressional Review Act, 5 U.S.C. 801 et seq.

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 September 24, 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 CAA section 307(b)(2).

Throughout this document, the words “we,” “us,” or “our” means the Environmental Protection Agency (EPA).

Areas meeting the requirements of section 107(d)(4)(B) of the Clean Air Act (CAA) were designated nonattainment for PM-10 by operation of law and classified “moderate” upon enactment of the 1990 Clean Air Act Amendments. See generally 42 U.S.C. 7407(d)(4)(B). In addition, pursuant to section 107(d)(3) of the CAA, EPA is authorized to redesignate areas as nonattainment for PM-10 on the basis of air quality data, planning and control considerations, or any other air quality-related considerations that EPA deems appropriate. In December 1992, the Governor of Oregon requested that, because of recorded violations of the 24-hour PM-10 standard in the Lakeview area that occurred in 1991 and 1992, the Lakeview area should be reclassified nonattainment for PM-10. See 58 FR 34403 (June 25, 1993). Accordingly, after notice and an opportunity for public comment, EPA designated the Lakeview area nonattainment for PM-10 effective January 20, 1994. See 58 FR 67334 (December 21, 1993).

As a newly designated PM-10 nonattainment area, the Lakeview area was classified as a moderate nonattainment area by operation of law. See CAA section 188(a). Pursuant to section 188(c)(1) of the Act, the attainment date for the Lakeview area was to be no later than the end of the sixth calendar year after the area was designated nonattainment. Because the Lakeview area was designated nonattainment for PM-10 effective October 25, 1993, the attainment date for the Lakeview area is December 31, 1999.

Pursuant to sections 179(c) and 188(b)(2) of the Act, we have the responsibility of determining within six months of the applicable attainment date whether, based on air quality data, PM-10 nonattainment areas attained the PM-10 NAAQS by that date. Determinations under section 179(c)(1) of the Act are to be based upon the area's “air quality as of the attainment date.” Section 188(b)(2) is consistent with this requirement.

Generally, we determine whether an area's air quality is meeting the PM-10 NAAQS for purposes of section 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations (NAMS) in the nonattainment areas and entered into the EPA Aerometric Information Retrieval System (AIRS). Data entered into the AIRS has been determined to meet federal monitoring requirements (see 40 CFR 50.6, 40 CFR part 50, appendix J, 40 CFR part 53, 40 CFR part 58, appendix A &B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meet the federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment of the annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration over a three-year period (for example 1997, 1998, and 1999 for areas with a December 31, 1999 attainment date) is equal to or less than 50 micrograms per cubic meter (ug/m3). Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM-10 concentrations greater than 150 ug/m3. The 24-hour standard is attained when the expected number of days with levels above 150 ug/m3 (averaged over a three-year period) is less than or equal to one. Three consecutive years of air quality data are generally required to show attainment of the annual and 24-hour standards for PM-10. See 40 CFR part 50 and appendix K.

After the Lakeview area was designated nonattainment, the State of Oregon, in cooperation with local officials, developed a control strategy that consisted of a residential wood burning combustion program. The program included public education and outreach efforts on how to burn wood with reduced emissions as well as a wood stove curtailment program designed to reduce wood burning during periods of adverse meteorology. Oregon submitted the control strategies as a revision to the State Implementation Plan (SIP) in 1995. EPA approved the SIP revision on September 21, 1999 (64 FR 51051). See 40 CFR 52.1970 (128).

As discussed above, 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. For an area with a December 31, 1999, attainment date, EPA considers data reported for calendar years 1997, 1998, and 1999.

The State of Oregon has established and operates one PM-10 SLAMS monitoring site in the Lakeview PM-10 nonattainment area near the intersection of Center and “M” Streets which was operating during 1997 through the present. In addition, Oregon established monitoring sites at the Lakeview Grange Hall and at 336 N. “L” street, both of which operated in 1998 and 1999. These three monitoring sites meet EPA SLAMS network design and siting requirements, set forth at 40 CFR part 58, appendices D and E. Only the site at Center and “M” Streets continues to monitor for PM-10.

There were no reported exceedences of the 24-hour PM-10 NAAQS at any of the sites during 1997 through 1999. Therefore, the expected exceedence rate is 0.0 for each of the three sites, which shows attainment of the 24-hour PM-10 standard. The average of the annual average for the years 1997 through 1999 at the Center and “M” site, the only site for which a three-year average can be calculated, is 21 ug/m3, which is below the level of the annual PM-10 standard of 50 ug/m3. Therefore, EPA finds that the Lakeview PM-10 nonattainment area attained the PM-10 standards by the attainment date of December 31, 1999.

This finding of attainment should not be confused, however, with a redesignation to attainment under CAA section 107(d) because Oregon has not, for the Lakeview area, submitted a maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignations to attainment. The designation status in 40 CFR part 81 will remain moderate nonattainment for the Lakeview PM-10 nonattainment area until such time as Oregon meets the CAA requirements for redesignations to attainment.

The attainment date for the Lakeview PM-10 nonattainment area is December 31, 1999, and the air quality data used to judge attainment by that date includes all data collected in calendar years 1997, 1998, and 1999. Beginning in January 2000 the Lakeview Grange Hall and 336 N. “L” street sites discontinued operation. EPA also reviewed the air quality data collected at the Center and “M” monitoring site through 2000. There were no exceedences of the 24-hour standard in 2000 at that site. Likewise, the annual average from the Center and “M” site was 20 ug/m3, which is below the level of the annual standard. There was insufficient data to determine an annual average from the other two sites.

Under Executive Order 12866, “Regulatory Planning and Review” (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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001). Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities because it merely makes a determination based on air quality data and does not impose any requirements. This action does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) because it does not impose any enforceable duties.

This action also does not have tribal implications because it will 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it 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, “Federalism” (64 FR 43255, August 10, 1999). The action merely makes a determination based on air quality data and does not impose any requirements and therefore does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act.

This action also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under Executive Order 12866.

This 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. In addition, this action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Because this in not a “major” rule as defined by 5 U.S.C. 804(2), EPA will not submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register , as specified in the Congressional Review Act, 5 U.S.C. 801 et seq.

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 September 24, 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 CAA section 307(b)(2).

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301142. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

This final rule revokes the FFDCA tolerances for residues of the insecticides diazinon, parathion, O,O -Diethyl S -[2-(ethylthio)ethyl] phosphorodithioate (disulfoton), ethoprop, and carbaryl in or on certain specified commodities. EPA is revoking these tolerances because they are not necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. These pesticides are no longer used on those specified commodities within the United States and no person has provided comment identifying a need for EPA to retain the tolerances to cover residues in or on imported foods. EPA has historically expressed a concern that retention of tolerances that are not necessary to cover residues in or on legally treated foods has the potential to encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances for residues of pesticide chemicals for which there are no active registrations under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

EPA is not issuing today a final rule to revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed above, if prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained, EPA independently verifies that the tolerance is no longer needed, or the tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

In the Federal Register of May 24, 1999 (64 FR 27947) (FRL-6083-1), EPA issued a proposed rule to revoke the tolerances listed in this final rule. For tolerance reassessment counting purposes, the number of tolerance revocations stated in the proposed rule of May 24, 1999 and listed in this final rule has been revised by EPA from 29 to 24, to account for maintaining one tolerance for residues of diazinon in/on olives for import purposes and to account for removing 4 berry tolerances (boysenberries and dewberries for diazinon; boysenberries and youngberries for parathion) which are now covered by an existing blackberry tolerance. EPA does not consider the removal of these 4 berry tolerances to be tolerance reassessments because the pesticide residue is still allowed on the commodity. Since diazinon and parathion tolerances not revoked will be part of the organophosphate cumulative risk assessment, these 4 tolerance removals are not yet countable as tolerance reassessments. There are 24 tolerance reassessments counted in this final rule. Also, the May 24, 1999 proposal invited public comment for consideration and for support of tolerance retention under FFDCA standards.

In response to the document published in the Federal Register of May 24, 1999, no comments were received by the Agency concerning the pesticides mentioned in this final rule, with the exception of diazinon. Concerning diazinon, the following comment was received:

1. Diazinon—comment from Novartis . A comment was received by the Agency from Novartis. Novartis wished to clarify that based on an August 2, 1993, agreement with EPA, diazinon products released for shipment by the registrant after August 31, 1995 could not include the uses listed in this document; and diazinon products sold or distributed after August 31, 1996 could not bear labeling with those uses. In addition, Novartis pointed out that rice was inaccurately listed as a commodity on which diazinon is used. Novartis also noted that in §180.153 of the May 24, 1999 proposed rule, page 27951, “pineapples” was inadvertently listed instead of “pineapples, forage.”

Agency response . The Agency acknowledges that in response to EPA's Data Call-In for Diazinon in 1987 and the 1988 Registration Standard, Novartis (then Ciba-Geigy) notified EPA that they did not intend to support the continued registration of diazinon on the uses listed in this document; and it was agreed that diazinon products sold or distributed after August 31, 1996 could not bear labeling with these unsupported uses. On December 27, 1996, a Federal Register notice (61 FR 68260) (FRL-5577-9) was issued announcing receipt of a request for voluntary deletion of these uses.

In the Federal Register on May 24, 1999, in section 180.153, “pineapples” was inadvertently listed in the codification text on page 27951 instead of “pineapples, forage”. However, “pineapples, forage” was correctly listed in the preamble on page 27949 as the tolerance proposed for revocation. The tolerance for “pineapples” is not revoked; it is still in effect, but the tolerance for “pineapples, forage” is revoked because it is no longer considered a significant feed item. In the proposed rule, rice was inadvertently listed as a commodity on which diazinon is used. In reference to the use of diazinon on rice, diazinon in fact does not have registered uses on rice within the United States nor does rice have a tolerance for diazinon.

EPA had proposed to revoke the tolerance for “olives” in 40 CFR 180.153 on May 24, 1999, however, because Makhteshim Agan of North America, Incorporated is interested in maintaining the “olives” tolerance for import purposes, the Agency will not revoke the tolerance for “olives” at this time. Instead, EPA will follow-up on this matter with Makhteshim Agan of North America, Incorporated.

EPA is revoking the tolerances in 40 CFR 180.153(a)(1) for residues of diazinon in or on birdsfoot trefoil; birdsfoot trefoil, hay; grass (NMT 40 ppm shall remain 24 hours after appli); grass, hay; peanuts; peanuts, forage; peanuts, hay; pecans; soybeans; and soybeans, forage; since these uses were voluntarily canceled (61 FR 68260, December 27, 1996). In the rule of May 24, 1999, EPA had proposed an effective date of expiration/revocation for these tolerances as January 1, 2000, but that date has since passed (64 FR 27947). EPA believes that existing stocks have been exhausted and that there has been enough time for all treated commodities to have passed through the channels of trade.

EPA is revoking the tolerances in 40 CFR 180.153(a)(1) for diazinon residues in or on beans, forage; beans, hay; beans, guar, forage; and pineapples, forage; since these commodities are no longer considered significant animal feed items and therefore no longer need tolerances. For general guidance on tolerances for commodities that are no longer considered significant feed items refer to the Federal Register December 17, 1997 (62 FR 66020) (FRL-5753-1).

When EPA proposed to revoke the tolerance in 40 CFR 180.153(a)(1) for diazinon residues in or on sugarcane on May 24, 1999 (64 FR 27947), the Agency inadvertently missed an existing FIFRA section 24(c) registration in Louisiana. That FIFRA section 24(c) registration has since been canceled on May 2, 2000 and there continues to be no need for the tolerance. Therefore, EPA is revoking the tolerance in 40 CFR 180.153(a)(1) for sugarcane. Because there have been no active registrations since May 2, 2000, EPA believes that existing stocks have been exhausted.

Also, EPA is removing the tolerances in 40 CFR 180.153(a)(1) for diazinon residues in or on boysenberries and dewberries (0.5 ppm each), since these commodities are now covered by the tolerance for blackberries (also set at 0.5 ppm).

No comments were received by the Agency concerning the following.

2. Parathion . Methyl parathion is the methyl homolog of ethyl parathion; ethyl parathion is called parathion in the tolerance listings in 40 CFR 180.121. Tolerances for methyl parathion residues on most crops are included in the (ethyl) parathion tolerances because the enforcement analytical method does not distinguish between the two chemical species. EPA is removing the tolerances in 40 CFR 180.121 for parathion or its methyl homolog residues in or on boysenberries and youngberries (both set at 1 ppm), since these commodities are now covered by the tolerance for blackberries (also set at 1 ppm).

3. O,O-Diethyl S-[2-(ethylthio)ethyl] phosphorodithioate (Disulfoton) . EPA is revoking the tolerance in 40 CFR 180.183(a)(1) for residues of disulfoton and its cholinesterase-inhibiting metabolites in or on pineapples, foliage because this commodity is no longer considered a significant animal feed item and therefore no longer needs a tolerance.

4. Ethoprop . EPA is revoking the tolerances in 40 CFR 180.262 for residues of ethoprop in or on beans, lima, forage; beans, snap, forage; pineapples, fodder; pineapples, forage; sugarcane, fodder; and sugarcane, forage. These commodities are no longer considered significant animal feed items and therefore no longer need tolerances. In 40 CFR 180.262, EPA is also removing the “(N)” designation from all entries to conform to current Agency administrative practice (“N” designation means negligible residues).

5. Carbaryl . EPA is revoking the tolerances in 180.169(a)(1) for residues of carbaryl including its hydrolysis product 1-naphthol in or on maple sap and in 40 CFR 180.169(c) for residues of carbaryl in or on avocados. EPA had received a request from the registrant who volunteered to delete those uses from registrations and the Agency agreed to approve the deletions to become effective on December 8, 1997 and authorized the registrant to sell or distribute product under the previously approved labeling for 18 months (62 FR 31816, June 11, 1997) (FRL-5721-2). EPA believes that there are no active registrations for these uses, that all existing stocks are exhausted, and that all treated commodities have passed through the channels of trade. Sections 180.169(a)(1) and 180.169(c) had been redesignated from sections 180.169(a) and 180.169(e), respectively on May 24, 2000 (65 FR 33691) (FRL-6043-1).

It is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients on crop uses for which FIFRA registrations no longer exist. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

These actions become effective 90 days following publication of this final rule in the Federal Register . EPA has delayed the effectiveness of these revocations for 90 days following publication of the final rule to ensure that all affected parties receive notice of EPA's actions. Consequently, the effective date is October 24, 2001. For this particular final rule, the actions will affect uses which have been canceled for more than a year. Therefore, commodities should have cleared the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residue of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of FDA that the residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

By law, EPA is required to reassess 66% or about 6,400 of the tolerances in existence on August 2, 1996, by August 2002. EPA is also required to assess the remaining tolerances by August 2006. As of May 29, 2001, EPA has reassessed over 3,630 tolerances. In this document, EPA is removing four tolerances and revoking 24 tolerances. Those 24 tolerance revocations are reassessments that are counted toward the August 2002 review deadline of FFDCA section 408(q), as amended by FQPA in 1996.

EPA is working to ensure that the U.S. tolerance reassessment program under FQPA does not disrupt international trade. EPA considers Codex Maximum Residue Limits (MRLs) in setting U.S. tolerances and in reassessing them. MRLs are established by the Codex Committee on Pesticide Residues, a committee within the Codex Alimentarius Commission, an international organization formed to promote the coordination of international food standards. When possible, EPA seeks to harmonize U.S. tolerances with Codex MRLs. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain in a Federal Register document the reasons for departing from the Codex level. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs. The U.S. EPA has developed guidance concerning submissions for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be made available to interested persons. Electronic copies are available on the internet at http://www.epa.gov/. On the Home Page select “Laws and Regulations,” then select “Regulations and Proposed Rules” and then look up the entry for this document under “ Federal Register — Environmental Documents.” You can also go directly to the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.]

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301142 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 24, 2001.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301142, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp- docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule will revoke tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted this type of action; i.e., a tolerance revocation for which extraordinary circumstances do not exist, from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities. Specifically, as per the 1997 notice, EPA has reviewed its available data on imports and foreign pesticide usage and concludes that there is a reasonable international supply of food not treated with canceled pesticides. Furthermore, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis.

In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175 requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

You may be affected by this action if you manufacture (defined by statute to include import) any of the chemical substances that are listed in the regulatory text of this document. Entities potentially affected by this action may include, but are not limited to:

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

1. Electronically . You may obtain electronic copies of this document and other documents from the EPA Internet Home Page at http://www.epa.gov/. On the Home Page select “Law and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPPTS-82056. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period, is available for inspection in the TSCA Nonconfidential Information Center, North East Mall Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. The Center is open from noon to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Center is (202) 260-7099.

Other than formal requests for removal of a chemical listed in this PAIR rule (see Unit VI.), which must be submitted to EPA on or before August 9, 2001, you may submit comments on this action at any time. Comments, as well as formal requests for removal of chemical substances, can be submitted through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPPTS-82056 in the subject line on the first page of your response.

1. By mail . Submit your comments to: Document Control Office (7407), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

2. In person or by courier . Deliver your comments to: OPPT Document Control Office (DCO) in East Tower Rm. G-099, Waterside Mall, 401 M St., SW., Washington, DC. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 260-7093.

3. Electronically . You may submit your comments electronically by e-mail to: oppt.ncic@epa.gov, or mail your computer disk to the address identified above. Do not submit any information electronically that you consider to be CBI. Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data will also be accepted on standard disks in WordPerfect 6.1/8.1 or ASCII file format. All comments in electronic form must be identified by docket control number OPPTS-82056. Electronic comments may also be filed online at many Federal Depository Libraries

Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives for improvement.

7. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

In this document, EPA is issuing a final TSCA section 8(a) PAIR rule for 41 chemicals recommended for testing in the 47 th ITC Report to the EPA Administrator published in the Federal Register of April 3, 2001 (66 FR 17768) (FRL-6763-6).

EPA promulgated the PAIR rule in 40 CFR part 712 under section 8(a) of TSCA (15 U.S.C. 2607(a)). This model section 8(a) rule establishes standard reporting requirements for manufacturers (including importers) of the chemicals listed in the rule at § 712.30. These entities are required to submit a one-time report on general production/importation volume, end use, and exposure-related information using the PAIR Form entitled Manufacturer's Report—Preliminary Assessment Information (EPA Form No. 7710-35). EPA uses this model section 8(a) rule to quickly gather current information on chemicals.

This model rule provides for the automatic addition of ITC Priority Testing List chemicals. Whenever EPA announces the receipt of an ITC Report, EPA may, at the same time and without providing notice and an opportunity for public comment, amend the model information-gathering rule by adding the recommended (or designated) chemicals. The amendment adding these chemicals to the PAIR rule is effective August 27, 2001.

In the 47 th ITC Report to EPA, the ITC recommended 41 chemicals. These chemicals are being added to the TSCA section 8(a) PAIR reporting rule.

The regulatory text of this rule lists the 41 chemicals that are being added to the PAIR rule as a result of this document.

All persons who manufactured (defined by statute to include import) the 41 chemicals identified in the regulatory text of this document during their latest complete corporate fiscal year must submit a PAIR Form for each site at which they manufactured or imported a named substance. A separate form must be completed for each substance and submitted to the Agency as specified in § 712.28 no later than October 24, 2001. Persons who have previously and voluntarily submitted a PAIR Form to the ITC or EPA may be able to submit a copy of the original report to EPA or to notify EPA by letter of their desire to have this voluntary submission accepted in lieu of a current data submission. See § 712.30(a)(3).

Details of the PAIR reporting requirements, including the basis for exemptions, are provided in 40 CFR part 712. Copies of the Form are available from the Environmental Assistance Division at the address listed under FOR FURTHER INFORMATION CONTACT . Copies of the PAIR Form are also available electronically from the Chemical Testing and Information Gathering Home Page on the Internet at http://www.epa.gov/opptintr/chemtest/.

Any person who believes that section 8(a) reporting required by this rule is not warranted, should promptly submit to EPA on or before August 9, 2001, detailed reasons for that belief. EPA, in its discretion, may remove the substance from this rule (see § 712.30(c)). When withdrawing a chemical from the PAIR rule, EPA will publish a final rule amending the PAIR rule in the Federal Register .

The following documents constitute the public record for this rule under docket control number OPPTS-82056.

1. This final rule.

2. The Economic Analysis for this rule (March 7, 2001).

3. The 46th ITC Report (65 FR 75551, December 1, 2000) (FRL-6594-7)).

4. The 47th ITC Report (66 FR 17768, April 3, 2001) (FRL-6763-6)).

EPA is publishing this action as a final rule without prior notice and an opportunity to comment because the Agency believes that providing notice and an opportunity to comment is unnecessary. As discussed in Unit III., whenever EPA announces the receipt of an ITC report, EPA may, at the same time and without providing notice and opportunity for public comment, amend the model information-gathering rule by adding the recommended (or designated) chemicals. EPA finds, therefore, that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553 (b)(3)(B)) to make these amendments without prior notice and comment.

The economic analysis for the addition of the 41 chemicals to the TSCA section 8(a) PAIR rule is entitled Economic Analysis for the Addition of 41 Chemicals Recommended for Testing in the 47 th Report of the TSCA Interagency Testing Committee to EPA's Preliminary Assessment Information Reporting (PAIR) Rule (March 7, 2001) (Economic Analysis).

Only 3 of the 41 chemicals were located in EPA's 1998 or 1994 Chemical Update System (CUS) utilizing the ITC-supplied CAS numbers. Because the threshold for reporting to CUS under the Inventory Update Rule is 10,000 lbs., and the threshold for PAIR reporting is 500 kilograms (kg) (1,100 lbs.), EPA assumed that one manufacturer at one site exists per chemical to account for the possibility that there may be manufacturers producing PAIR-reportable amounts that were not captured by CUS. EPA has no way of ascertaining the validity of this assumption, a fact which highlights the need for PAIR reporting on these chemicals.

Given the assumptions in this unit, the costs and burden associated with this rule are estimated in the Economic Analysis to be the following:

  Reporting Costs (dollars)

  Reporting Burden (hours)

  EPA Costs (dollars)

The annual costs to the Federal Government will be approximately 0.1035 Full Time Equivalents (FTEs) (or 215.25 hours annually). At an estimated $85,050 per FTE, the total 0.1035 FTEs ($8,802.68), plus $8,635.01 for data processing, will cost EPA $17,437.69.

The Office of Management and Budget (OMB) has exempted actions under TSCA section 8(a) related to the PAIR rule from the requirements of Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

This action does not involve special considerations of environmental justice-related issues pursuant to Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), does not apply to this final rule, because it is not “economically significant” as defined under Executive Order 12866, and does not concern an environmental health or safety risk that may have a disproportionate effect on children. This rule requires the reporting of production, importation, use, and exposure-related information to EPA by manufacturers (including importers) of certain chemicals recommended in the 47 th ITC Report.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq ., the Agency hereby certifies that this rule will not have a significant impact on a substantial number of small entities. The factual basis for the Agency's determination is presented in the small entity analysis prepared as a part of the Economic Analysis for this rule, and is briefly summarized here. Three of the six firms identified as manufacturers of chemicals affected by this rule met the Small Business Administration definition of a small business, (i.e., having less than 1,000 employees when combined with any corporate parents). Based on the Agency's analysis, the maximum potential impact of this action on an individual firm is estimated to be less than $2,219, regardless of the firm's size. To determine the potential significance of the estimated impact of this action on the small firms, the Agency compared the estimated maximum potential cost with the estimated annual sales revenue for these firms. Based on currently available financial information for these firms, EPA has determined that this action will not result in a significant impact on any of these firms. Information relating to this EPA determination is included in the docket for this rule (OPPTS-82056). Any comments regarding the economic impacts that this action imposes on small entities may be submitted to the Agency at any time after July 26, 2001 using the methods discussed in Unit I.C.

Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq .), an Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information that is subject to approval under the PRA unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after appearing in the preamble of the final rule, are listed in 40 CFR part 9, and included on the related collection instrument. The information collection activities related to this action have already been approved by OMB, under OMB control number 2070-0054 (EPA ICR No. 586) for PAIR reporting. This action does not impose any burdens requiring additional OMB approval. The public reporting burden for this collection of information is estimated to be 1,165 hours. Of that total, an estimated 287 hours are spent in an initial review of the rule, and the remaining 878 hours are associated with actual reporting activities (Economic Analysis). Because this rule does not contain any new information collection activities, additional review and approval of these activities by OMB under the PRA is not necessary.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. In addition, EPA has determined that this rule will not significantly or uniquely affect small governments. Accordingly, the rule is not subject to the requirements of UMRA sections 202, 203, 204, or 205.

This rule does not have tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This does not significantly or uniquely affect the communities of Indian trial governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998), do not apply to this rule. Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000), which took effect on January 6, 2001, revokes Executive Order 13084 as of that date. EPA developed this rulemaking, however, during the period when Executive Order 13084 was in effect; thus, EPA addressed tribal considerations under Executive Order 13084. For the same reasons stated for Executive Order 13084, the requirements of Executive Order 13175 do not apply to this rule either. Nor will this action have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Section 12(d) of NTTAA directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA invites public comment on the Agency's determination that this regulatory action does not require the consideration of voluntary consensus standards.

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, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).

EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this 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 is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

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 good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). EPA has made such a good cause finding for this final rule, and established an effective date of August 27, 2001. Pursuant to 5 U.S.C. 808(2), this determination is supported by the brief statement in Unit VIII. EPA will submit a report containing this final 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 is not a “major rule” as defined by 5 U.S.C. 804(2).