The Board administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, which has been codified, as amended, largely at 5 U.S.C. 8351 and 8401-8479. The TSP is a tax-deferred retirement savings plan for Federal employees, which is similar to cash or deferred arrangements established under section 401(k) of the Internal Revenue Code (I.R.C.) (26 U.S.C. 401(k)). The TSP is qualified under section 7701(j) of the I.R.C. (26 U.S.C. 7701(j)). Sums in the TSP are held in trust for the TSP participant.

Part 1650 was first published in final form in the Federal Register on September 18, 1997 (62 FR 49112), and was subsequently amended by a final rule published in the Federal Register on June 9, 1999 (64 FR 31052). On July 12, 2001, the Board published a proposed rule with a request for comments in the Federal Register (66 FR 36494) to eliminate the option to transfer a financial hardship in-service withdrawal to an individual retirement account (IRA) or other eligible retirement plan. The Board received no comments; accordingly, the Board adopts the provisions of the proposed rule as the final rule.

Part 1650 was published in final form in the Federal Register on September 18, 1997 (62 FR 49112), and was subsequently amended by a final rule published in the Federal Register on June 9, 1999 (64 FR 31052). This proposed rule further amends the final rule.

The Board is amending § 1650.42(b) to provide that a financial hardship withdrawal may no longer be transferred to an IRA or other eligible retirement plan. The Board is eliminating this option to transfer because transfer is available only for distributions which meet the Internal Revenue Service (IRS) requirements for an eligible rollover distribution. However, the IRS no longer considers a financial hardship withdrawal to be an eligible rollover distribution. See 26 U.S.C. 402(c)(4). Instead, a financial hardship withdrawal is treated as a nonperiodic payment.

Section 402(c)(4) applies to plans qualified under section 401(k) of the I.R.C. (26 U.S.C. 401(k)); this does not include the TSP, which is a plan qualified under section 7701(j) (26 U.S.C. 7701(j)). Nevertheless, the Board intends to follow the IRC rule that applies to private sector plans. (An age-based in-service withdrawal continues to be eligible for transfer to an IRA or other qualified plan.)

As a consequence of this change, the Board is also eliminating § 1650.31(b) which allows a participant to elect additional tax withholding from a financial hardship in-service withdrawal to ensure that he or she receives an amount adequate to cover the entire financial hardship, after withholding. However, unlike an eligible rollover distribution, a participant can avoid withholding (or can increase withholding) on a nonperiodic distribution by submitting an IRS Form W-4P, Withholding Certificate for Pension or Annuity Payments. Since the participant can obtain the full amount of the withdrawal by submitting this form to the TSP record keeper, the option to increase the amount of the withdrawal is no longer necessary.

Other amendments to § 1650.31 include changes to (b)(2) to clarify that the documentation supporting a financial hardship withdrawal request based upon an extraordinary expense must be dated within 45 days of the request. Section 1650.31 also includes a new paragraph (d). The new paragraph explains that a participant who has a pending Chapter 13 bankruptcy action is not eligible for a financial hardship withdrawal because the TSP presumes that the bankruptcy court is providing adequate funds for the participant's living expenses.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act of 1980.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, and 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.

Pursuant to 5 U.S.C. 801(a)(1)(A), the Board submitted 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 today's Federal Register . This rule is not a major rule as defined at 5 U.S.C. 804(2).

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 737-100 and -200 series airplanes was published in the Federal Register on May 1, 2001 (66 FR 21700). That action proposed to require initial and repetitive inspections of certain areas of the wing spars to detect cracking or corrosion; and follow-on corrective actions and repair, if necessary.

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

The manufacturer recommends adding certain wording for clarification to the section of the Notice of Proposed Rulemaking (NPRM) which is entitled “Explanation of Relevant Service Information.” The FAA acknowledges that the suggested wording is more precise. However, since that wording does not reappear in the AD itself, no change is necessary.

The manufacturer also suggests that the “Applicability” section be changed to read “Model 737-100 and -200 series airplanes, line number 1 through 310 inclusive, and 323; certificated in any category.” The effect of the suggested wording would be to clarify that the next generation of 737 models is specifically excluded. The FAA agrees with the need for this clarification and has changed the AD accordingly.

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 change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 168 Boeing Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 45 airplanes of U.S. registry will be affected by this AD.

The FAA estimates that it will take approximately 30 work hours per airplane to do the initial detailed visual and eddy current inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the initial inspections on U.S. operators is estimated to be $81,000, or $1,800 per airplane.

The FAA estimates that it will take approximately 30 work hours per airplane to do the repetitive inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspections on U.S. operators is estimated to be $81,000, or $1,800 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) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-400 and 767 series airplanes was published in the Federal Register on December 5, 2000 (65 FR 75881). That action proposed to require modification of the core cowl assemblies of the engines.

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

One commenter states that it does not own or operate any of the subject airplanes and, thus, offers no additional comment on the proposed AD.

Three commenters request that the FAA extend the compliance time for the proposed modification. One of the commenters requests that the FAA extend the compliance time from 24 months to 36 months after the effective date of this AD, due to its concerns about availability of necessary parts for the modification. The other two commenters request that the FAA extend the compliance time to 48 months after the effective date of this AD. One of these commenters is also concerned about parts availability, while the other commenter wants the extension so that it may accomplish the modification during its regularly scheduled “C” and “D” checks.

The FAA concurs with the one commenter's request to extend the compliance time to 36 months after the effective date of this AD. We have determined that extending the compliance time to 36 months will allow a sufficient supply of parts to be made available for the required modification without adversely affecting safety. We have revised paragraph (a) of this final rule accordingly.

We do not concur with the other commenters' requests to extend the compliance time for the modification to 48 months. With regard to parts availability, as stated above, we find that a 36-month compliance time will be adequate for a sufficient quantity of parts to be available. With regard to extending the compliance time to allow the modification to be accomplished at a “C” or “D” check, we have already considered factors such as operators' maintenance schedules in setting a compliance time for the required modification and determined that 36 months is an appropriate compliance time in which the modification may be accomplished during scheduled airplane maintenance for the majority of affected operators. Since maintenance schedules vary from operator to operator, it would not be possible to guarantee that all affected airplanes could be modified during scheduled maintenance, even with a compliance time of 48 months. In any event, we find that 36 months represents the maximum time wherein the affected airplanes may continue to operate prior to modification without compromising safety. No further change to the final rule is necessary in this regard.

One commenter requests that the FAA withdraw the proposed rule. In the proposed rule, we explained that, in the event of an engine fire, the core cowl latches may fail, and opening of the core cowls breaches the engine fire containment design and could allow the fire to spread to the strut and wing of the airplane. The commenter states that, following extensive review of the engine cowling configuration, it cannot see that the core cowls would open during an engine fire even if the frame is weakened, because the trailing edge of the thrust reverser covers up the leading edge of the core cowl. Therefore, the commenter does not agree that there is risk of a fire spreading to the strut. The commenter further requests that we withdraw the proposed rule because the total cost of the modification that would be required by this AD for its fleet would be very expensive.

We do not concur with the commenter's request to withdraw the proposed rule. With regard to the commenter's doubts about whether failure of the core cowl latches is an unsafe condition, we acknowledge that the commenter is correct when it states that the trailing edge of the thrust reverser covers the leading edge of the core cowl. However, in the event of an engine fire when the aluminum structure supporting the steel latches holding the core cowls closed is significantly weakened, the structural continuity between the hinges at the top of the core cowl and the latches at the bottom no longer exists. Therefore, the structural integrity of the attachment of the core cowl to the airplane is compromised, and aerodynamic loads will force the core cowls to open and subsequently detach from the airplane. As explained in the NPRM, this condition could allow the engine fire to spread to the strut and wing. We have determined that this risk of a fire propagating to the strut and wing is significant and constitutes an unsafe condition that must be addressed.

With regard to the commenter's concern about the cost of the AD, we acknowledge that there are relatively high costs associated with the required modification. For operators with many affected airplanes, the cost could run into millions of dollars. However, in considering whether to issue this AD, we conducted a cost analysis and determined that the costs of the modification required by this AD are commensurate with the level of risk involved, and it is necessary to issue this AD to ensure the continued safety of the affected airplanes.

No change to the final rule is necessary in this regard.

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 change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 563 Model 747-400 and 767 series airplanes of the affected design in the worldwide fleet.

The FAA estimates that 14 Model 747-400 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 168 work hours (42 per engine) per airplane to accomplish the required modification, and that the average labor rate is $60 per work hour. Required parts will cost approximately $84,732 ($21,183 per engine) per airplane. Based on these figures, the cost impact of the modification required by this AD on U.S. operators of Model 747-400 series airplanes is estimated to be $1,327,368, or $94,812 per airplane.

The FAA estimates that 64 Model 767 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 84 work hours (42 per engine) per airplane to accomplish the required modification, and that the average labor rate is $60 per work hour. Required parts will cost approximately $42,366 ($21,183 per engine) per airplane. Based on these figures, the cost impact of the modification required by this AD on U.S. operators of Model 767 series airplanes is estimated to be $3,033,984 or $47,406 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-09-11, amendment 39-11144 (64 FR 19883, April 23, 1999), which is applicable to certain Boeing Model 747 series airplanes and all 747-E4B (military) airplanes, was published in the Federal Register on March 29, 2001 (66 FR 17091). The action proposed to continue to require repetitive inspections to detect cracking or fracture of the steel attachment fittings of the diagonal brace to the nacelle struts; and replacement of the attachment fittings with new steel fittings, if necessary. The action proposed to add new repetitive inspections of the fasteners of the steel attachment fittings of the diagonal brace to the inboard and outboard nacelle struts to find discrepancies; and mandate certain one-time inspections of the existing attachment fittings, installation of new fasteners, and replacement or rework of the fittings, which would terminate the repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Several comments were submitted by a single commenter, and the FAA has duly considered these comments.

The commenter requests that the FAA revise the Cost Impact section of the proposed rule to increase its estimate of the number of work hours from 76 to 476 work hours for the proposed terminating action. The commenter states that 476 work hours is the estimate given for the terminating action in Boeing Service Bulletin 747-54A2196, Revision 1, dated August 17, 2000 (which is referenced as the appropriate source of service information for doing the terminating action in the proposed AD). The commenter states that it is appropriate to include the time necessary for access and close-up because the airplane's engines are not normally removed during a “C”-check or heavy maintenance visit, but engine removal and re-installation are necessary for the terminating action in the proposed AD.

The FAA concurs. We acknowledge that operators must remove the engines (and re-install them) to do the terminating action required by this AD, and that the airplane's engines may not normally be removed at a maintenance visit that will occur during the compliance times required by this AD. We find, though, that the commenter's estimate of 476 work hours is less than the figure of 516 work hours, which the service bulletin provides. Therefore, we have revised the “Cost Impact” section of this final rule to estimate that the terminating action required by this AD will take 516 work hours (including time for gaining access and closing up).

The commenter requests that the FAA revise paragraph (b) of the proposed AD to revise the compliance time from the latest of 3,000 total flight cycles on any diagonal brace attachment fitting, within 30 days after the effective date of the AD, and within 150 flight cycles after accomplishment of AD 95-10-16 or AD 95-13-07; to the earlier of 18 months after the effective date of the AD and at the next “C”-check visit after the effective date of the AD. The commenter's rationale is that the repetitive inspections currently required by AD 99-09-01 at the initial inspection threshold and repetitive interval required by that AD have been effective in ensuring that any extensively damaged or failed fittings are found and replaced in a timely manner. The commenter states that it presumes the existing inspections were sufficiently justified and determined to be adequate to maintain the necessary level of safety. The commenter also states that it views the proposed AD's more extensive inspections as supplementing rather than replacing the existing inspections required by AD 99-09-01. The commenter clarifies that, if the FAA grants its request, the repetitive inspections required by AD 99-09-01 should continue until the terminating action in the proposed AD is accomplished.

The FAA does not concur with the commenter's request. In the preamble of AD 99-09-11, we stated that the actions required by that AD were considered to be “interim action,” and that further rulemaking was being considered. As stated in the proposed rule, since the issuance of AD 99-09-11, we have reviewed and approved Boeing Service Bulletin 747-54A2196, Revision 1. We have determined that the inspections in that service bulletin provide an increased level of safety over the detailed visual inspections required by AD 99-09-11. We have also received reports that, while doing the new inspections required by this AD, operators have found damaged fittings that would not have been found during the inspections required by AD 99-09-11. For these reasons, the FAA finds it appropriate to supersede the existing AD to require the new inspections at the compliance times specified in Boeing Service Bulletin 747-54A2196, Revision 1. Also note that we have approved that service bulletin (as well as the original issue, dated April 2, 1999) as an alternative method of compliance to AD 99-09-11. No change to the final rule is necessary in this regard.

The commenter requests that the FAA revise paragraph (h) of the proposed rule to extend the compliance time for the proposed terminating action from 36 months (after the effective date of the AD) for the diagonal brace to the inboard nacelle struts and 48 months (after the effective date of the AD) for the diagonal brace on the outboard nacelle struts, to 54 months. The commenter notes that the proposed compliance times allow the work involved with the terminating action on both the inboard and outboard nacelle struts to be spread out over only two “C”-checks. The commenter also notes that there is a lead time of 270 days for obtaining the kit necessary for the terminating action. The commenter states that its recommendation of a 54-month compliance time would allow the work to be spread over two “C”-checks and a partial “D”-check and provide sufficient time to obtain the kit necessary for terminating action.

The FAA does not concur with the commenter's request. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but also the criticality of the strut-to-wing attachments. The commenter did not submit any technical data showing that an extension of the compliance time for the terminating action to 54 months would provide an acceptable level of safety. Thus, the FAA does not find it appropriate to revise the compliance time as requested by the commenter. However, the commenter may submit a request for an adjustment of the compliance times in this AD according to paragraph (i)(1) of this AD. In its request, the operator may want to provide the number of subject airplanes in its fleet, the number of airplanes on which it has done the terminating action, and the schedule for doing the terminating action on the remaining airplanes. The FAA will consider an operator's good-faith attempt to complete the terminating action within the required compliance times. No change to the final rule is necessary in this regard.

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 significantly increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 745 Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 173 airplanes of U.S. registry will be affected by this AD.

The inspections that are currently required by AD 99-09-11 take approximately 4 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $41,520, or $240 per airplane, per inspection cycle.

The new detailed visual inspections/torque checks that are required by this AD will take approximately 12 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspections/torque checks required by this AD on U.S. operators is estimated to be $124,560, or $720 per airplane, per inspection cycle.

The new terminating actions (which include, for the inboard pylon, inspection of the existing steel fittings for cracks or damage; replacement if cracked; rework or replacement if damaged; or installation of new fasteners if no cracks; and, for the outboard pylon, detailed visual inspection of the fitting for damage, high frequency eddy current inspection of fastener holes, and installation of new fasteners) required by this AD will take approximately 516 work hours per airplane (including time for gaining access and closing up) to accomplish, at an average labor rate of $60 per work hour. Required parts will cost $13,776 (for airplanes equipped with Pratt & Whitney JT9D series engines) or $31,083 (for airplanes equipped with GE CF6-45 or -50 series engines). Based on these figures, the cost impact of the terminating actions required by this AD is estimated to be $44,736 per airplane (for airplanes equipped with Pratt & Whitney JT9D series engines) or $62,043 per airplane (for airplanes equipped with General Electric CF6-45 or -50 series engines).

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 usually represent only the time necessary to perform the specific actions actually required by the AD. While the cost impact figures given above for the terminating actions include time for gaining access and closing up, cost impact figures in AD rulemaking actions 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 issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to supersede AD 92-04-06, amendment 39-8177 (57 FR 6068, February 20, 1992). (A correction of AD 92-04-06 was published in the Federal Register on April 1, 1992 (57 FR 11137).) AD 92-04-06 is applicable to all Airbus Model A320 series airplanes. The proposed AD was published in the Federal Register on March 1, 2001 (66 FR 12913). The action proposed to require periodic inspection of the elevators for excessive freeplay; repair or replacement of worn parts, if excessive freeplay is detected; replacement of the elevator servo controls with modified elevator servo controls; and modification of the elevator neutral setting. The action also proposed to revise the applicability to include additional airplane models.

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

Several commenters, including the National Transportation Safety Board, support the proposed AD.

One commenter (the manufacturer) requests that the proposed AD be withdrawn. The commenter asserts that there is no unsafe condition due to limit cycle oscillation (LCO) of the elevator. The commenter disagrees with the FAA's conclusion that elevator LCO could result in reduced structural integrity and reduced controllability of the airplane. The commenter notes that because LCO is a fixed-frequency vibration with a constant amplitude, it is therefore not a stability problem. The commenter contends that such a phenomenon is well detectable, and the flight crew can determine the significance of the airframe vibration and initiate appropriate corrective action. The commenter claims that, during the period between LCO initiation and uncomfortable vibration, there is no structural concern. The commenter adds that extensive flight tests have been conducted by the manufacturer, with representative backlash configurations combined with low hinge moment, and no adverse effect on handling qualities was found. The commenter considers the actions included in existing tasks in the aircraft maintenance manual (AMM) and service bulletins to be sufficient to address any possible LCO phenomenon. In addition, the commenter does not consider that there would be any benefit from imposing corrective action on an airplane with no vibration reported.

The FAA does not concur with the request to withdraw the proposed AD. The FAA has determined that the A320 elevator LCO, as defined by Airbus, is actually an aeroelastic stability problem (i.e., self-excited and not damped with time), which, if not addressed, could result in reduced structural integrity and reduced controllability of the airplane. The FAA is aware of all of the analytical and experimental investigations conducted by Airbus that have shown that LCO is caused by a combination of low hinge moment and elevator freeplay. The FAA is also aware that the amplitude of the vibration increases with freeplay and airspeed. The FAA disagrees with the Airbus contention that the vibration will be felt by the flight crew, who can initiate the appropriate corrective action. The FAA notes that the modification of the elevator neutral setting would tend to mask the presence of freeplay and associated vibration, and make the freeplay checks even more critical. The FAA also disagrees with the Airbus contention that there would be no benefit from imposing these actions on airplanes that have not had vibration problems. To address potential LCO events, Airbus has revised the AMM to reduce the allowable freeplay limits, and issued service bulletins to recommend installation of improved spherical bearings to reduce the wear rate, and modification of the elevator neutral setting to ensure that elevators have sufficient hinge moment loading under most flight conditions. The FAA agrees with these recommendations but considers that these actions, except as noted below, must be mandated to ensure the continued safe operation of the fleet, by reducing the likelihood of LCO events and ensuring that the amplitude of any LCO event that does occur is controlled to a level that will not result in reduced structural integrity of the airplane.

The FAA notes that this LCO phenomenon is not unique to Airbus airplanes; the actions required by this AD are consistent with actions taken on other airplanes. The FAA considers this final rule necessary to adequately address the identified unsafe condition.

One commenter (the manufacturer) considers that the effect of replacing the elevator servo controls would merely improve the wear resistance of the servo control spherical bearings, and would not cure the root cause of the LCO phenomenon. The commenter asserts that mandating the servo control replacement would place an unnecessary financial burden on airlines. (The commenter subsequently clarified this comment as a request to remove this requirement from the proposed AD.)

The FAA concurs. The FAA has determined that replacing the servo controls with new improved controls, as proposed, would provide improved wear resistance but would not prevent wear from occurring. Therefore, the FAA has determined that mandatory replacement is not necessary. Paragraph (c) of the proposed AD has been removed from this final rule. The freeplay checks and rigging change required by this AD will adequately address the identified unsafe condition.

One commenter (an operator) requests that the AD be revised to reflect the position that the identified unsafe condition is instead more a matter of passenger inconvenience. The operator has revised its airplane flight manual (AFM) to include a “Vibration Section,” which explains vibration types, methods of identifying vibrations, and specific reporting procedures.

The FAA does not concur. The FAA considers the LCO to be unsafe for the reasons identified in response to the previous comment. No change to the final rule is necessary in this regard.

Two commenters request that the proposed AD be revised to extend the compliance time for the freeplay inspection. One commenter (an operator) requests that the compliance time be extended from 18 to 18.5 months to correspond to its “L” check. This commenter states that the inspection at 18.5-month intervals has proven to be effective at detecting deterioration before elevator-induced vibration is reported. Another commenter (also an operator) reports that, based on its experience, it takes significantly longer than 18 months for the Airbus elevator system components to degrade to a level at which the trailing edge freeplay would fail the test. The commenter suggests that 36 months is a more appropriate inspection interval.

The FAA does not concur with the requests to extend the inspection interval. The FAA has determined that 18 months is the maximum amount of time allowable for these airplanes to continue to safely operate between inspections. The FAA finds that the 18-month compliance time is consistent with the maintenance schedules of most operators. Further, the experience of a couple operators is not sufficient to indicate that the interval should be increased. In the absence of data to justify a longer interval, the FAA finds no reason to deviate from the 18-month interval, as proposed, to accommodate the special maintenance schedules of one operator. No change to the final rule is necessary in this regard.

One commenter (an operator) requests that the proposed AD be revised to extend the compliance time from 18 to 36 months to replace the elevator servo controls. The commenter states that the vendor turnaround time for nonroutine repair of the servo is 26 days, which does not support a servo replacement for its fleet within 18 months, and suggests 36 months for the compliance time for the servo replacement.

As stated previously, the proposed requirement to replace the elevator servo controls has been removed from this final rule. Therefore, no change to the final rule is necessary regarding this comment.

One commenter (an operator) states that upgrading the elevator servo controls, uprigging the elevators, and accomplishing a trailing edge play check have been completed on nearly all its airplanes, and asserts that no value would be added by repeating the actions.

The FAA infers that the operator requests the addition of specific language to provide credit for prior accomplishment of those actions. The FAA notes that operators are given credit for work previously performed by means of the phrase in the “Compliance” section of the AD that states, “Required as indicated, unless accomplished previously.” Therefore, for this AD, if the modification has been accomplished prior to the effective date of the AD, this AD does not require that the action be repeated. No change to the final rule is necessary in this regard.

Two commenters request that the proposed AD be revised to indicate that required parts for elevator servo control replacement are not free of charge. One commenter (the manufacturer) notes that the elevator servo bearing replacement is free only on an attrition basis, and not to accommodate the required replacement on all affected airplanes. Another commenter (an operator) notes that removal and upgrade of the elevator servo controls resulted in nonroutine maintenance, costing in excess of $16,666 per airplane.

As stated previously, the proposed requirement to replace the elevator servo controls has been removed from this final rule. Therefore, no change to the final rule is necessary regarding this comment.

Two commenters request that paragraph (a) of the proposed AD be revised to allow the use of “equivalent tooling” to perform the inspection for excessive elevator freeplay. One commenter (an operator) states that the proposed AD could be interpreted as requiring the use of the tooling identified in the AMM. The commenter contends that applying this interpretation would preclude credit for previous freeplay checks performed with the alternative tooling, and that the AD would therefore require all of the operator's airplanes to be inspected within three months. The commenter asserts that use of a calibrated spring scale to apply force along with a pointer affixed to the trailing edge to measure the freeplay provides results equivalent to those provided by the AMM-specified tooling.

The commenter has correctly interpreted the AD as requiring the tooling specified in the AMM. The FAA does not concur with the request to revise the final rule to allow alternative tooling to accomplish the inspection. The commenter did not provide any data regarding this alternative tooling to substantiate that the alternative tooling would provide results equivalent to those intended by this AD. However, under the provisions of paragraph (d) of the final rule, the FAA may approve requests for alternative methods of compliance if data are submitted to substantiate that the use of such alternative tooling would provide equivalent results. No change to the final rule is necessary in this regard.

One commenter (an operator) requests that the proposed AD be revised to allow use of 535K001/930K016A primer instead of Mastinox 6856K primer for accomplishment of the elevator servo control replacement. The commenter reports that 535K001/930K016A primer was substituted for Mastinox 6856K primer during the modification because of environmental concerns.

As stated previously, the proposed requirement to replace the elevator servo controls has been removed from this final rule. Therefore, no change to the final rule is necessary regarding this comment.

This same commenter requests that the proposed AD be revised to indicate a reference to a future revision of the Lucus CMM. Lucus has advised the commenter that CMM 34-52 misidentified the primer as “Mastinox 5866K” primer, which will be corrected to “Mastinox 6856K” in the next CMM revision.

As stated previously, the proposed requirement to replace the elevator servo controls has been removed from this final rule. Therefore, no change to the final rule is necessary regarding this comment.

One commenter (an operator) requests that the proposed AD be revised to allow compliance with the modification requirement in accordance with Airbus Service Bulletin A320-27-1114, Revision 01, dated April 11, 1997; Revision 02, dated October 13, 1998; and Revision 03, dated December 3, 1998. Based on experience with this type of vibration, the commenter reports that the elevator neutral setting modification has already been accomplished on numerous airplanes, in accordance with Revisions 01, 02, and 03 of the service bulletin. The commenter adds that Revisions 02, 03, and 04 all state: “No additional work required for previously accomplished aircraft.”

The FAA partially concurs with the request. (Although the commenter refers to “item ‘C’ of the Replacement section,” the FAA infers that the commenter intended to refer to the “Modification” requirement, which was paragraph (d) in the proposed AD.) The FAA agrees that airplanes modified in accordance with Revision 01, 02, or 03 should not be required to repeat the modification in accordance with Revision 04. However, the FAA notes that, after the effective date of the AD, only Revision 04 may be used to ensure that the most accurate information is being followed. This final rule has been revised to include new Note 2, which provides credit for the modification in accordance with Revisions 01, 02, and 03 of the service bulletin, if accomplished prior to the effective date of this AD.

One commenter requests that the proposed AD be revised to specify a future revision to Airbus Service Bulletin A320-27-1114 (which was cited at Revision 04 as the appropriate source of service information for accomplishment of the modification specified by paragraph (d) of the proposed AD). The commenter notes that Airbus has advised that an upcoming revision of the service bulletin will include additional airplanes not included in Revision 04.

The FAA does not concur. Referring to documents that do not exist at the time the AD is published violates Office of the Federal Register (OFR) regulations regarding approval of materials “incorporated by reference” in rules. These OFR regulations require that either the service document be submitted for approval by the OFR as “referenced” material, in which case it may be simply called out in the text of an AD, or the service document contents be published as part of the actual AD language. An AD may reference only the specific service document that was submitted and approved by the OFR for “incorporation by reference.” In order for operators to use later revisions of the referenced document (issued after the publication of the AD), either the FAA must revise the AD to reference the specific later revisions, or operators must request the approval of their use as an alternative method of compliance (under the provisions of paragraph (d) of this AD). The FAA may consider additional rulemaking if it is determined that additional airplanes must be modified.

One commenter (an operator) requests that paragraph (b) of the proposed AD be revised to require that repair be accomplished “as necessary,” rather than in accordance with specific AMM task numbers. The commenter notes that those AMM tasks address only the servo control and the elevator, not the rod end bearings. The commenter reports that, for almost every check that revealed freeplay outside the AMM limits, it was necessary to replace the rod end bearings of the servo control to correct the deterioration.

The FAA partially concurs. The FAA notes that repair of rod end bearings is addressed under the AMM procedure referenced in the AD. However, the FAA agrees that the specific repair task number is not included in the AMM procedure. Therefore, paragraph (b) of the final rule has been revised to remove specific AMM task references and clarify that the repair must be accomplished in accordance with the AMM to bring freeplay within AMM-specified limits.

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 significantly increase the economic burden on any operator nor increase the scope of the AD.

Approximately 352 airplanes of U.S. registry will be affected by this proposed AD.

Inspecting to detect elevator freeplay will take approximately 2 work hours, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the initial inspection required by this AD on U.S. operators is estimated to be $42,240, or $120 per airplane.

Approximately 112 airplanes will require adjustment of the elevator neutral setting, which will take approximately 12 work hours, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the required adjustment on U.S. operators is estimated to be $80,640, or $720 per airplane.

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

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

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

The FAA has received a report that severe corrosion was found on a keel beam splice on two Boeing Model 737-700 series airplanes. At the time the severe corrosion was found, the airplanes had been in service for approximately 22 months since date of manufacture. This corrosion has been attributed to the material of the keel beam splice plates that were installed during production of certain Boeing Model 737-600, -700, and -800 series airplanes. The material, 7150-T6511, is known to be highly susceptible to corrosion. Such corrosion, if not found and fixed, could cause cracking of the keel beam splices, which in turn could lead to rapid degradation of the strength of the keel beam splices, and result in failure of the keel beam and consequent failure of the forward fuselage of the airplane.

This unsafe condition may exist or develop on Model 737-600 and -700 series airplanes up to and including line number 908; and on Model 737-800 series airplanes up to and including line number 455. The keel beam splices on airplanes after those line numbers are made of a more corrosion-resistant material.

On November 5, 1990, we issued AD 90-25-01, amendment 39-6789 (55 FR 49263, November 27, 1990). That AD applies to all Boeing Model 737 series airplanes and requires implementation of a corrosion prevention and control program (CPCP) specified in Boeing Document Number D6-38528 “Aging Airplane CPCP, Model 737,” Revision A, dated July 28, 1989.

The airplanes subject to this new AD are also subject to AD 90-25-01. However, we have previously approved an alternative method of compliance (AMOC) to paragraph (a) of that AD for Boeing Model 737 “Next Generation” airplanes (which includes Model 737-600, -700, and -800 series airplanes). This AMOC allows certain inspection thresholds and repetitive intervals listed in Section 8 (“Structural Maintenance Program”) of Boeing Document Number D626A001, dated June 2000 (the “Maintenance Planning Document” (MPD) for the Boeing 737 Next Generation airplanes), to be used as an alternative to the thresholds and intervals listed in Boeing Document Number D6-38528, Revision A.

We have determined that existing inspections of the keel beam splices included in the CPCP required by the existing AD and in Boeing Document Number D626A001 are not sufficient to ensure that the splices are inspected for corrosion and cracking in a timely manner. This determination is based on the following information:

• Task Number 53-210-00 of Boeing Document Number D626A001, Section 8, dated June 2001, includes repetitive general visual inspections for any discrepancy of the keel beam under the wing-to-body fairing, including the keel beam splice (among other areas). We find that the procedures involved in this inspection are sufficient to ensure that corrosion and cracking of the keel beam splices are found. However, the compliance time for this inspection is 12 years since the airplane's date of manufacture or 36,000 total flight cycles, whichever occurs first, and the repetitive interval is 8 years or 24,000 flight cycles, whichever occurs first. We have determined that the compliance threshold is not early enough and the repetitive interval is too long to ensure that corrosion and cracking of the keel beam splices is found and fixed in a timely manner. (As stated above, severe corrosion of the keel beam splice plates has been found on two Model 737-700 series airplanes within 22 months after the date of manufacture of those airplanes.)

• Task 53-828-00 of Boeing Document Number D626A001, Section 7 (“Zonal Inspection Program”), dated June 2001, contains instructions for an optional general visual inspection for discrepancies in a specific area aft of the keel beam at a suggested repetitive interval of 18 months. However, the procedures do not specifically state that the keel beam splices should be inspected.

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, the FAA and representatives of the airplane manufacturer met on July 23 and 25, 2001. (Records of these meetings are available in the Rules Docket for examination by interested persons.) The purpose of these meetings was to allow the manufacturer to provide revised engineering data that could potentially affect the compliance time for the actions required by this AD. Although the manufacturer concurs with our determination that the corrosion addressed by this AD represents a safety concern, it asserts that the compliance times could be increased over the times we planned to require for the actions in this AD.

The revised data presented primarily consisted of a finite-element analysis (FEA) of the wing and fuselage of the Boeing Model 737 “Next Generation” airplanes. The FEA included results of a “splice plates intact” model, and an analysis of the model with the keel beam chords rendered ineffective (due to corroded or cracked splice plates) at the body station (BS) 540 location. The manufacturer asserted that the FEA was necessary to properly analyze this area because this area, the lower wing-to-fuselage connection, is highly complex and redundant.

The manufacturer asserted that the buttock line 41 fuel beam and the under-wing longeron would be adequate to react limit load in the case of failure of the keel beam chord splices at BS 540. (Limit load is defined as the highest application of load that is expected to occur in service.) Based on these data, the manufacturer suggested that an 18-month repetitive inspection interval, similar to the MPD inspection of an adjacent area which was described previously, would provide an adequate level of safety.

We have reviewed the revised data provided by the manufacturer and concur that the area is structurally very complex and difficult to analyze, due to the structural interactions of the fuselage and wing. We accept that the alternate load paths shown by the manufacturer's analysis are adequate to react limit load in the event of failure of the keel beam splices at BS 540. However, the fatigue life of the alternate load paths is unknown and is expected to be reduced due to the significant increase in loads.

Given the level of risk, we conclude that urgent airworthiness action continues to be necessary and requires the immediate adoption of this AD without notice and opportunity for prior public comment. However, we have determined that the manufacturer's analysis allows for an increase in the initial inspection threshold and repetitive inspection interval over what we planned to require, as well as an increase in the planned grace period (for airplanes over the initial inspection threshold).

The initial reports of severe corrosion were received in July 2000, on airplanes with line numbers 73 and 90. As described previously, at that time, these airplanes had been in service for approximately 22 months. It was not until May 2001, that we determined the actual extent of the corrosion of the splice plate. As a result, it is possible that there are approximately 400 airplanes at present that are at two years or more since date of manufacture, with some airplanes being as old as 4 years since date of manufacture. Inspection of these airplanes may reveal corrosion considerably in excess of the severe corrosion observed on line numbers 73 and 90.

We originally intended to set a compliance threshold of 12 months since date of manufacture for the initial inspection, with a repetitive inspection interval of 12 months. We intended to allow a grace period of 30 days after the effective date of this AD for airplanes older than 12 months since date of manufacture. As discussed above, due to the revised data provided by the manufacturer, we have determined that the following changes to the compliance times for this AD will provide an acceptable level of safety:

• For airplanes at less than 18 months since date of manufacture as of the effective date of this AD, extension of the initial inspection threshold to the later of 18 months since date of manufacture or 90 days after the effective date of this AD.

• For airplanes at 18 months or more since date of manufacture as of the effective date of this AD, extension of the initial inspection threshold to the later of 24 months since date of manufacture or 30 days after the effective date of this AD.

• For all airplanes, extension of the repetitive inspection interval to 18 months.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to find and fix corrosion or cracking of the keel beam splices, which could lead to rapid degradation of the strength of the keel beam splices, and result in failure of the keel beam and consequent failure of the forward fuselage of the airplane. This AD requires repetitive detailed visual inspections for corrosion or cracking of the keel beam splices, and repair or replacement of splice plates and bolts with new, improved parts, if necessary. This action also provides an optional terminating action for the repetitive inspections.

This is considered to be interim action. We are currently considering requiring the replacement of existing splice plates and bolts with new, improved parts, which is included in this AD as an optional terminating action that terminates the repetitive inspections required by this AD action. However, the planned compliance time for the replacement is sufficiently long so that notice and opportunity for prior public comment will be practicable.

Task Number 53-210-00 of Boeing Document Number D626A001 describes a general visual inspection for discrepancies of the keel beam under the wing-to-body fairing, including the keel beam splice. However, we have determined that it is necessary for this AD to require a detailed visual inspection for corrosion or cracking of the keel beam splice only.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-236-AD.” The postcard will be date-stamped and returned to the commenter.

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

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

As a part of the continuing efforts to reorganize the part numbering system of title 27 CFR, ATF is removing part 290, in its entirety, and is recodifying the regulations as 27 CFR part 44. This change improves the organization of title 27 CFR.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

Because no notice of proposed rulemaking is required for this rule under the Administrative Procedure Act (5 U.S.C. 553), the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. We sent a copy of this final rule to the Chief Counsel for Advocacy of the Small Business Administration in accordance with 26 U.S.C. 7805(f). No comments were received.

This final rule is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this final rule is not subject to the analysis required by this Executive Order.

Because this final rule merely makes technical amendments to improve the clarity and organization of the regulations, it is unnecessary to issue this final rule with notice and public procedure under 5 U.S.C. 553(b). Similarly, because this final rule makes no substantive changes and is merely the recodification of existing regulations, good cause is found that it is unnecessary to subject this final rule to the effective date limitation of 5 U.S.C. 553(d).

The principal author of this document is Lisa M. Gesser, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

Section 503(a) of SMCRA permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act. * * *” and “rules and regulations consistent with regulations issued by the Secretary” pursuant to SMCRA. 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the December 15, 1981, Federal Register (46 FR 61085-61115). You can find later actions on conditions of approval and program amendments at 30 CFR 946.11, 946.12, 946.13, 946.15, and 946.16.

By letter dated September 22, 2000 (Administrative Record Number VA-1008) the Virginia Department of Mines, Minerals and Energy (DMME) submitted an amendment to the Virginia program. In its letter, the DMME stated that the program amendment changes the Virginia program rules at 4 VAC 25-130-700.5 and 4 VAC 25-130-800.21 in response to amendments required by OSM in the May 3, 1999, Federal Register (64 FR 23542).

On May 3, 1999, OSM approved an amendment to the Virginia program which amended the Virginia Coal Surface Mining Control and Reclamation Act by adding “letter of credit” as an acceptable form of collateral bond to satisfy the performance bonding requirements of the Virginia Act. In our approval of the Virginia amendment, we required that the Virginia program regulations be revised to be no less effective than the Federal regulations at 30 CFR 800.5(b), and 30 CFR 800.21(b)(2) concerning letters of credit. We codified this requirement at 30 CFR 946.16(a). The amendment submitted by Virginia is intended to satisfy this required amendment.

We announced receipt of the proposed rulemaking in the October 4, 2000, Federal Register (65 FR 59152), invited public comment, and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on November 3, 2000. We received three comment letters from Federal agencies. No one requested to speak at a public hearing, so no hearing was held.

Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed amendments to the Virginia program. Only the substantive changes submitted by Virginia will be discussed below.

The definition of “Collateral bond” is amended by adding a new paragraph (d) to read as follows.

This new language is substantively identical to the Federal definition of “Collateral bond” at 30 CFR 800.5(b)(4), with two exceptions. Virginia uses the phrase “at sight” while the Federal rule says “upon presentation.” Ballentine's Law Dictionary, 3d ed., defines “at sight” to mean “on presentment; on being shown the instrument.” Therefore, Virginia's use of the phrase “at sight” is no less effective than 30 CFR 800.5(b)(4). The new State language also requires that irrevocable letters of credit be prepared in accordance with the Uniform Customs and Practices for Documentary Credits (1993 revision or the UCP revision current at the time of issuance of the letter of credit) International Chamber of Commerce (Publication No. 500). The Uniform Customs and Practices for Documentary Credits was created by the International Chamber of Commerce and is used in the United States as well as many other countries. The UCP defines the liabilities and responsibilities of banks, the relationship of letters of credits with other documents as well as various other provisions. We find that the incorporation by reference to the 1993 UCP is not inconsistent with the Federal regulations at 30 CFR 800.5(b)(4) and can be approved. However we are not approving the phrase, “or the UCP revision current at the time of issuance of the letter of credit.” We are not approving this language because we cannot approve future revisions without reviewing the revisions and understanding their effects on the Virginia program and whether they would render the Virginia program less effective.

This provision is amended by revising paragraph (a) by adding the phrase “except for letters of credit” in the introductory sentence, adding a new paragraph (c), and re-lettering existing paragraph (c) as paragraph (d).

As amended, 4 VAC 25-130-800.21(a) reads as follows.

The counterpart Federal regulations at 30 CFR 800.21(a), concerning collateral bonds, contains this same phrase. We find that the words “except for letters of credit” have the same effect in the Virginia program as they do in the counterpart Federal regulations. We find, therefore, that the State amendment does not render the Virginia program less effective than the Federal regulations at 30 CFR 800.21(a) and can be approved.

These provisions have been amended to read as follows.

We find that the new language at 4 VAC 25-130-800.21(c) is substantively identical to the counterpart Federal regulations at 30 CFR 800.21(b) concerning collateral bonds, letters of credit, with the following two exceptions. Virginia uses the phrase “at sight” while the Federal rule says “upon demand.” Virginia's Commercial Code at § 3-108, states that an instrument payable on demand include those payable at sight or on demand. Therefore, Virginia's use of the phrase “at sight” is no less effective than the Federal rules. The new State language at 4 VAC 25-130-800.21(c)(1) also provides that letters of credit must conform to the Uniform Customs and Practice for Documentary Credits (1993 Revision or revision current at the time of issuance of the letter of credit) International Chamber of Commerce (Publication No. 500). As previously stated, the UCP defines the liabilities and responsibilities of banks, the relationship of letters of credits with other documents as well as various other provisions. We find that the incorporation by reference to the 1993 UCP is not inconsistent with the Federal regulations at 30 CFR 800.21(b)(1) and can be approved. However we are not approving the phrase, “or revision current at the time of issuance of the letter of credit.” We are not approving this language because we cannot approve future revisions without reviewing the revisions and understanding their effects on the Virginia program and whether they would render the Virginia program less effective.

In addition to our partial approval of the Virginia amendments, we find that the approved provisions fully address the requirements of the required amendment codified at 30 CFR 946.16(a), which can, therefore, be removed.

On October 10, 2000, we asked for comments from various Federal agencies which may have an interest in the Virginia amendment (Administrative Record Number VA-1009). We solicited comments in accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations. Two comment letters were received. The U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded and stated that the Virginia amendment does not impact, nor conflict with any law, policy or regulation enforced by MSHA. The U.S. Department of Agriculture, Natural Resources Conservation Service responded and concurred with the amendments.

Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to solicit comments and obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the amendments submitted by Virginia pertain to air or water quality standards. By letter dated October 10, 2000, we requested EPA's comments on the proposed amendment (Administrative Record Number VA-1009).

The EPA responded by letter dated April 11, 2001 (Administrative Record Number VA-1012), and stated that the amendment does not conflict with the Clean Water Act. The EPA provided no other comments.

We solicited public comments on the amendment. We did not receive any public comments.

Based on the findings above, we are approving the amendments to the Virginia program, except as noted below. We are not approving the words, “or the UCP revision current at the time of issuance of the letter of credit,” in the definition of “Collateral bond,” paragraph (d), at 4 VAC 25-130-700.5; and, we are not approving the words, “or revision current at the time of issuance of the letter of credit,” at 4 VAC 25-130-800.21(c)(1). In addition, we are removing the required amendment codified at 30 CFR 946.16(a), which has been satisfied by this amendment.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 946 which codifies decisions concerning the Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of SMCRA and meeting its purposes. Making this regulation effective immediately will expedite that process.

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

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

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

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

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Since this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

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

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

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

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

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

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

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

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

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

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

Table 1 lists the rule we are approving with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On October 4, 2000, this rule submittal was found to meet the completeness criteria in 40 CFR Part 51, Appendix V, which must be met before formal EPA review.

We approved a version of Rule 461 into the SIP on October 7, 1996. See 61 FR 52297.

The purpose of the revision to Rule 461 is to revise the rule to include new CARB standards and more frequent reverification testing of vapor recovery equipment.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see sections 182(a)(2)(A) and 182(b)(3)(A)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an extreme ozone nonattainment area. See 40 CFR part 81. Therefore, Rule 461 must fulfill the requirements of RACT.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

• Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044 (November 24, 1987).

• “ Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24,1987 Federal Register Notice ” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

Rule 461 was also evaluated against the EPA Draft Model Rule, Gasoline Dispensing Facility-Stage II Vapor Recovery (August 17, 1992). In evaluating RACT, EPA also considered information published since the 1992 Draft Model Rule , including documents associated with development of CARB's Enhanced Vapor Recovery Guidelines (March 23, 2000). EPA, Region IX, has summarized RACT requirements in the EPA Draft Gasoline Vapor Recovery Guidelines (April 24, 2000).

We believe that this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. Rule 461 is more stringent than the SIP. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by September 19, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 19, 2001. This will incorporate these rules into the federally-enforceable SIP.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

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). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the 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 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 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), EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct in issuing this rule. 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. section 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. section 804(2).

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 19, 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).)

On February 6, 1998 and May 14, 2001, the State of Maryland submitted formal revisions to its State Implementation Plan (SIP). These SIP revisions consist of:

(1) Administrative revisions affecting the overall organization of the general definitions section (COMAR 26.11.01.01).

(2) Revisions to COMAR 26.11.01.01B(43), the definition of “source,” due to a revision in the organization of the State statute which is cross-referenced in this definition. There are no substantive changes to the wording of any of the definitions subject to this action. On June 12, 2001, Maryland also submitted additional revisions to the chapter governing ambient air quality standards. Maryland provided proof that public hearings were held on the revisions in accordance with the requirements of 40 CFR section 51.102. The State held hearings on January 25 and 26, 1994 with regard to the COMAR rule reorganization, on July 23, 1997 with regard to the revised definition of “source,” and on June 14 and 17, 1994 with regard to the reorganized structure of the ambient air quality standards chapter.

In the reorganization of COMAR 26.11.01.01, subsection 26.11.01.01A now contains a general purpose statement, while subsection 26.11.01.01B contains all of the general terms which appear throughout COMAR 26.11.XX.XX (Maryland's air pollution control regulations). There are some definitions which are found in subsection 26.11.01.01B, as well as all of the provisions listed in subsection 26.11.01.01C which EPA has never incorporated by reference into 40 CFR Section 52.1070(c). Therefore, EPA is not acting on those provisions in this rulemaking action. The following chart lists the terms for which SIP-approved COMAR citations change as a result of this action:

EPA designated Marshall and a portion of Livingston Counties, Kentucky, (i.e., the Paducah area) nonattainment under the 1-hour ozone National Ambient Air Quality Standard (NAAQS) effective January 6, 1992 (56 FR 56694). Furthermore, EPA classified the area as “marginal” under Title I Part D Subpart 2 of the Clean Air Act Amendments of 1990. EPA approved the Paducah area's redesignation request and maintenance SIP effective April 10, 1995 (60 FR 7124). The maintenance SIP contained emissions inventories and projections for volatile organic compounds (VOC) and nitrogen oxides (NO X ) from all sources for the 1990 base year through 2004, including every three years in the interim. The on-road mobile source VOC and NO X projections established MVEBs for transportation conformity purposes for the Paducah area. The original MVEBs are shown in Table 1.

The Commonwealth of Kentucky forecasted slight increases in total NO X of 0.10 tons per day in 2002 and 0.17 tons per day in 2004 compared to the 1990 level. The original maintenance plan for the Paducah area was based on maintaining total emissions at or below the 1990 levels, a year during which the area met the 1-hour ozone NAAQS. However, EPA believes that these slight emissions increases will not adversely impact maintenance of the 1-hour ozone NAAQS in the Paducah area. In addition, the forecasted excess emissions will likely be offset by reductions from federal measures that were enacted and implemented since approval of the original maintenance plan, but for which the Commonwealth of Kentucky did not take credit in the SIP revision. Specifically, NO X emissions reductions from the Tier 2/Gasoline Sulfur Rule (65 FR 6697), federal locomotive standards (63 FR 18977), nonroad diesel engine standards (63 FR 56967), and new gasoline spark-ignition marine engine standards (61 FR 52087) should be sufficient to offset the forecasted emissions increases in the SIP.

Per section 175A.(b) of the Clean Air Act, the Commonwealth of Kentucky must submit a revision of the Paducah area maintenance SIP to EPA by April 10, 2003. The revision will update the SIP to maintain the 1-hour ozone NAAQS in the Paducah area for 10 years after the expiration of the current plan. EPA expects the Commonwealth of Kentucky to update all emissions source categories in the revision to the maintenance SIP and to incorporate any applicable Clean Air Act and federal measures that have been enacted since the original maintenance plan was developed.

Once EPA's approval of this SIP revision is effective, the revised MVEBs in Table 2 must be used for transportation conformity purposes in the Paducah area.

The procedure for estimating on-road mobile source emissions consists of multiplying together: (1) The level of travel activity ( e.g., DVMT), and (2) the emissions factors ( e.g., grams of pollutant emitted per mile driven). KYTC collects and forecasts DVMT data for the Paducah area, and the Kentucky Division for Air Quality (DAQ) calculates the corresponding mobile source emissions factors using EPA's MOBILE model.

In developing the original maintenance SIP, KYTC utilized statewide average Highway Performance Monitoring System (HPMS) data to estimate and forecast DVMT in the Paducah area. Since that time, KYTC's supporting data and analytical procedures for DVMT estimation have been upgraded. In the revised maintenance SIP, KYTC's DVMT estimates are based on county-specific travel activity, and the forecasts are based, in part, on county-specific population forecasts. KYTC believes that the revised DVMT estimates and forecasts are more reliable than those used in the development of the original maintenance SIP. The SIP revision documents the new procedures, and EPA finds the procedures to be reasonable for estimating and forecasting DVMT in the Paducah area. The revised DVMT totals for the Paducah area are roughly 20 to 25 percent higher than the original totals. The original and revised DVMT estimates are shown in Tables 5 and 6, respectively.

DAQ used the same MOBILE input assumptions in the development of the revised maintenance SIP ( e.g., ambient temperature, registration distributions, fuel volatility, average vehicle speeds) as were used in the original maintenance plan. In addition, for the revised SIP, DAQ included the effects of the 2004 NO X emissions standard for heavy-duty diesel engines (MOBILE5 Information Sheet #5, http://www.epa.gov/oms/models/mobile5/m5info5.pdf) in 2004 and the National Low Emission Vehicle standard for light-duty gasoline fueled vehicles in years 2002 and 2004 (MOBILE5 Information Sheet #6, http://www.epa.gov/oms/models/mobile5/m5info6.pdf), both of which were approved by EPA after the original maintenance plan was developed.

EPA is approving the aforementioned changes to the SIP because the revision meets all applicable Clean Air Act statutory and regulatory requirements.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective October 19, 2001 without further notice unless the Agency receives adverse comments by September 19, 2001.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. 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 October 19, 2001 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the United States Senate, the United States 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 October 19, 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).)

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR).

Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) all sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) all sources covered by a CTG issued prior to November 15, 1990; and

(3) all major non-CTG sources. The regulations imposing RACT for these non-CTG major sources were to be submitted to EPA as SIP revisions by November 15, 1992 and compliance required by May of 1995.

The Pennsylvania SIP already includes approved RACT regulations for all sources and source categories covered by the CTGs. On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NO X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO X RACT requirements. In the Pittsburgh area, a major source of VOC is defined as one having the potential to emit 50 tons per year (tpy) or more, and a major source of NO X is defined as one having the potential to emit 100 tpy or more. Pennsylvania's RACT regulations require sources, in the Pittsburgh area, that have the potential to emit 50 tpy or more of VOC and sources which have the potential to emit 100 tpy or more of NO X comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO X sources. For other major NO X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NO X RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrate that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NO X RACT regulations by submitting 485 case-by-case VOC/NO X RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. The regulation currently retains its limited approval status. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties; the limited approval of Pennsylvania's generic VOC and NO X RACT regulations shall convert to a full approval for the Pittsburgh area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NO X emissions in the form of a NO X cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NO X SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NO X SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NO X SIP call rule SIP submittal. EPA expects to publish the final rulemaking in the Federal Register in the near future. Federal approval of a case by case RACT determination for a major source of NO X in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On January 6, 1995, August 1, 1995, January 10, 1996, January 21, 1997, February 2, 1999, March 3, 1999, and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to eight of those sources. The RACT determinations for the other sources are, or have been the subject of separate rulemakings. The Commonwealth's submittals consist of Plan Approvals (PA) and Operating Permits (OP) issued by PADEP. These PAs and OPs impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Pittsburgh area.

The table below identifies the sources and the individual Plan Approvals (PAs) and Operating Permits (OPs) which are the subject of this rulemaking. A summary of the VOC and NO X RACT determinations for each source follows the table.

AES Beaver Valley Partners, Inc.'s Monaca Plant is a cogeneration plant located in Potter Township, Pennsylvania. The Monaca plant is a major NO X emitting facility. The PADEP issued OP 04-000-446 to impose RACT for this facility for the installation of low-NO X burners and combustion optimization. The Commonwealth has imposed NO X emission limits on AES Beaver Valley Partners' Monaca plant that shall not exceed an excess of .7 lbs/MMBtu from the main stack based on a 30-day rolling average. A yearly NO X emission limit for this facility is established as 5933 tpy. The annual limit must be met on a rolling monthly basis over every consecutive 12 month period. This facility is subject to record keeping requirements of 25 PA Code section 129.95, and compliance shall be established based on emission data obtained from a certified Continuous Emissions Monitoring System (CEM) installed, maintained, and operated in accordance with 25 Pa. Code Chapters 123 and 139. AES Beaver Valley Partners' Monaca plant is also subject to additional post-RACT requirements to reduce NO X .

Pennsylvania Power Company's (Duquesne Light) Bruce Mansfield Plant is a power plant located in Shippingport Borough, Pennsylvania. It is a major VOC and NO X emitting facility. The PADEP issued PA 04-000-235 to impose RACT at the source for the installation of low-NO X burners with separate over-fire air on Units 1, 2, and 3, and to limit the annual capacity factors on auxiliary Boilers 1, 2, and 3. The NO X emission limit of 0.5 lbs/MMBtu, based on a 30-day rolling average, applies to each of the units. The tpy limit is based upon a 95 percent annual capacity factor limitation. Reductions in the allowable emission rates below the levels established by this permit shall not be available as Emission Reduction Credits (ERCs) pursuant to 25 Pa. Code section 127.206 unless the reductions are achieved through real reductions of actual or allowable emissions, whichever is lower, through the installation of controls beyond those required by RACT, or any other subsequent regulatory requirement. Auxiliary Boilers 1, 2, and 3 shall operate in accordance with the presumptive RACT limitations identified in 25 Pa. Code section 129.93(c)(5), which identifies RACT as installation, maintenance and operation of the source in accordance with the manufacturer's specifications. The source is required to keep data that clearly demonstrates that the auxiliary boilers' annual capacity factors are less than 5 percent, respectively. VOC RACT for Units 1, 2, and 3 at this plant shall be operational in accordance with the manufacturer's recommendations. Duquesne Light/Pennsylvania Power Company's Bruce Mansfield plant is required to perform stack testing to determine emission rates from Units 1, 2, and 3, to be conducted while the source is operating at the maximum rated capacity as stated in the source's application. Compliance shall be established based on emission data obtained from a certified CEM installed, maintained, and operated in accordance with 25 Pa. Code Chapter 139, and the PADEP's Source Testing Manual. The source is required to maintain records in accordance with the record keeping requirements of 25 Pa. Code section 129.95. Duquesne Light/Pennsylvania Power Company's Bruce Mansfield plant is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code Chapters 121, 123 and 145.

West Penn Power Company's Mitchell Station is a power plant located in Union Township, Pennsylvania. Mitchell Station is a major VOC and NO X emitting facility. The PADEP issued PA 63-000-016 to impose RACT for the installation of low-NO X burners with separate over-fire air on Boiler No. 33. The NO X emission limit of 0.45 Lbs/MMBtu applies to Boiler No. 33, with a 30-day rolling average. NO X emissions from Boiler No. 33 shall not exceed 4849 tpy. The NO X emission limit of 0.2 Lbs/MMBtu, based on a 30-day rolling average, applies to Boilers 1, 2, and 3. The annual NO X emission limit for Boilers 1, 2, and 3 shall not exceed 575 tpy, each. These units shall burn only No. 2 fuel oil, or natural gas, unless otherwise approved by the PADEP. Compliance with the above limits shall be established based upon emission data obtained from a certified CEM installed, maintained, and operated in accordance with 25 Pa. Code Chapters 123 and 139, and all stack testing shall be performed in accordance with 25 Pa. Code Chapter 139, and the PADEP's Source Testing Manual. Annual limits must be met on a rolling monthly basis over every consecutive 12 month period. Reductions in the allowable emission rates below the levels established by this permit shall not be available as ERCs pursuant to 25 Pa. Code section 127.206 unless the reductions are achieved through real reductions of actual or allowable emissions, whichever is lower, through the installation of controls beyond those required by RACT or any other subsequent regulatory requirement. West Penn Power Company's Mitchell Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code Chapters 121, 123 and 145.

Apollo Gas Company's Shoemaker Station is a natural gas compressor station located in Bethel Township, Pennsylvania. Shoemaker Station is a major VOC and NO X emitting facility. The PADEP issued OP 03-000-183 to impose RACT for the OEM (lean combustion retrofit modifications) on the Cooper GMVH-6 and the Cooper GMVH-6c engines at the facility. Apollo Gas Company's Shoemaker Station shall perform stack testing by a qualified testing firm on the Cooper GMVH-6 and the GMVH-6c engines. This testing will be performed every five years on the equipment to determine the emission rates of NO X and VOC. Testing shall be conducted while the engines are operating at full load and full speed during the ozone season (April to October). Apollo Gas Company's Shoemaker Station shall quantify emissions at each engine semi-annually using a portable analyzer. The source shall submit a complete operating procedure for the portable analyzer, including calibration, QA/QC, and emissions calculations methods. Results from the stack tests shall be retained on site and be made available to PADEP upon request. Stack testing shall be performed in accordance with 25 PA Code Chapter 139 and the PADEP's Source Testing Manual. Two copies of the pre-test protocol shall be submitted to the PADEP for review at least 60 days prior to the performance of the test. The PADEP shall be notified at least two weeks in advance of the test, so that an observer may be present. Two copies of the stack test shall be supplied to the PADEP for review within 60 days of the testing. The source shall maintain records for at least two years, in accordance with the minimum record keeping requirements of 25 PA Code section 129.95. The combined allowable emission rates of the two natural gas fueled engines at the Shoemaker Station are as follows: For the Cooper GMVH-6, the NO X limits are 8.4 lbs/hr, and 37 tpy. The VOC limits for this unit are 3.2 lbs/hr, and 14 tpy. For the Cooper GMVH-6c, the NO X limits are 7.0 lbs/hr, and 31 tpy. The VOC limits for this unit are 4.2 lbs/hr, and 18.5 tpy. Reductions in the allowable emission rates below the levels established by this permit shall not be available as ERCs pursuant to 25 PA. Code section 127.206 unless the reductions are achieved through real reductions of actual or allowable emissions, whichever is lower, through the installation of controls beyond those required by RACT or any other subsequent regulatory requirement. Annual limits must be met on a rolling monthly basis over every consecutive 12-month period.

Carnegie Natural Gas Company's Fisher Station, formerly the Apollo Gas Company's Fisher Station, is a natural gas compressor station located in Redbank Township, Pennsylvania. Carnegie Natural Gas Company's Fisher Station is a major VOC and NO X emitting facility. The PADEP issued OP 03-000-182 to impose RACT at this source for the operation of OEM lean combustion retrofit modifications on an Ajax 600 DPC engine, along with a Cooper GMVH-6 (1,350 BHP) engine at the Fisher Station. The source shall perform stack testing by a qualified testing firm on the Ajax 600 DPC engine. This testing will be performed every five years on the equipment to determine the emission rates of NO X and VOC. Testing shall be conducted while the engines are operating at full load and full speed during the ozone season (April to October). Carnegie Natural Gas Company's Fisher Station is required to perform stack testing in accordance with 25 PA Code Chapter 139 and the PADEP's Source Testing Manual. Two copies of the pre-test protocol shall be submitted to the PADEP for review at least 60 days prior to the performance of the test. The PADEP shall be notified at least two weeks in advance of the test, so that an observer may be present. Two copies of the stack test shall be supplied to the PADEP for review within 30 days of the testing. In addition, Carnegie Natural Gas shall quantify emissions semi-annually from the Ajax 600 DPC using portable analyzers. The source is required to submit a complete operating procedure for the portable analyzer, including calibration, QA/AC, and emissions calculation methods. Results from these tests shall be retained on-site, and be made available to the PADEP upon request. The source shall maintain records for at least two years, in accordance with the minimum record keeping requirements of 25 PA Code section 129.95. The combined allowable emission rates of the two natural gas fueled engines at the Fisher Station are as follows: For the Ajax 600 DPC engine, the NO X limit is 6.5 g/bhp/hr at full load, full speed conditions; 9.0 lbs/hr at other operating conditions. On a rolling monthly basis in any consecutive 12 month period, NO X emissions may not exceed 40 tons, and VOC limits may not exceed 6 tons. For the Cooper GMVH-6 engine (1,350 HP), Fisher Station is required to operate this engine in accordance with the presumptive RACT limitations identified in 25 PA Code 129.93(c)(5), which identifies RACT as the installation, maintenance, and operation of the source in accordance with manufacturer's specifications. The units shall also be operated and maintained in accordance with good air pollution control practices. Fisher Station shall keep data that clearly demonstrates that the stand-by engine's annual capacity factors are less than five percent, or that the operating hours are less than 500 hours per year (hr/yr), on a consecutive 12 month basis. Reductions in the allowable emission rates below the levels established by this permit shall not be available as ERCs pursuant to 25 Pa. Code section 127.206 unless the reductions are achieved through real reductions of actual or allowable emissions, whichever is lower, through the installation of controls beyond those required by RACT or any other subsequent regulatory requirement.

The Peoples Natural Gas Company's Girty Station is a natural gas compressor station located in South Bend Township, Pennsylvania. The Peoples Natural Gas Company's Girty Station facility is a major VOC and NO X emitting facility. The PADEP issued PA 03-000-076 to impose RACT for the installation of Pre-stratified controls on Units 1,2, and 4 at the Girty Compressor Station. The emission limits of the units at the Girty Station are as follows:

The Peoples Natural Gas Company's Girty Station is required to perform stack testing to determine the emission rate of NO X as NO 2 2, and non-methane volatile organic compound (NMVOC). A pre-test protocol shall be submitted to the PADEP for review at least 30 days prior to the performance of the test. Stack testing shall be performed in accordance with 25 PA Code Chapter 139 and the PADEP's Source Testing Manual. The PADEP shall be notified at least two weeks in advance of the test, so that an observer may be present. Two copies of the stack test shall be supplied to the PADEP for review within 60 days of the testing. The Waukesha-Climax stand-by generator at the Girty Station shall not operate in excess of five percent of the annual capacity factor for that engine. All annual limits must be met on a rolling monthly basis over every consecutive 12 month period.

The Peoples Natural Gas Company's Valley Station is a natural gas compressor station located in Cowanshannock Township, Pennsylvania. The Peoples Natural Gas Company's Valley Station is a major VOC and NO X emitting facility. The PADEP issued PA 03-000-125 to impose RACT for the operation of Pre-stratified Charge and Original Equipment Manufacturer's type lean combustion controls on Units 1, 3, and 4 at the Valley Compressor Station. The emission limits of the units at the Valley Station are as follows, where non-methane hydrocarbon limits are expressed as NMHC:

The Peoples Natural Gas Company's Valley Station is required to perform stack testing to determine the emission rate of NO X as NO 2 , and NMHC on units 1 through 5. A pre-test protocol shall be submitted to the PADEP for review at least 30 days prior to the performance of the test. Stack testing shall be performed in accordance with 25 PA Code Chapter 139 and the PADEP's Source Testing Manual. The PADEP shall be notified at least two weeks in advance of the test, so that an observer may be present. Two copies of the stack test shall be supplied to the PADEP for review within 60 days of the testing. Unit 2 at the Valley Station shall not operate in excess of five percent of the annual capacity factor for that engine. All annual limits must be met on a rolling monthly basis over every consecutive 12 month period.

Texas Eastern Transmission Corporation's Delmont Station is a natural gas compressor station located in Salem Township, Pennsylvania. Texas Eastern Transmission Corporation's Delmont Station is a major VOC and NO X emitting facility. The PADEP issued OP 65-000-839 to impose RACT for the installation of screw-in precombustion chambers on the four (4) Ingersoll-Rand (IR) KVS 412 engines, non-selective catalytic reduction (NSCR) on the six (6) IR KVG 410 engines, and the implementation of presumptive RACT on one (1) Leroi L3460 engine, one (1) Caterpillar AR emergency generator, and five (5) heaters at the Delmont Station. Texas Eastern's Delmont Station shall not operate the Leroi L 3460 auxiliary generator, the Caterpillar AR emergency generator, or the Caterpillar 3412 emergency generator more than 500 hours annually per engine. The emission rates of the GS MS 5001 turbine shall be limited as follows: 230 ppmvd of NO X and annual emissions of 440 tpy of NO X (at 15 percent O 2 ); and 25 ppmvd of NMVOC, and annual emissions of 1 tpy of NMVOC. The emission rates of the Pratt Whitney CG3 turbine shall be limited as follows: 160 ppmvd of NO X and annual emission of 160 tpy of NO X (at 15 percent O 2 ); and 50 ppmvd of NMVOC and annual emissions of 1 tpy of MVOC. The emission rates of each Ingersoll Rand KVG 410 engine shall be limited as follows: NO X limits of 5 lbs/ hr, and 22 tpy; NMVOC limits of 0.5 lbs/hr, and 1.3 tpy. The emission rates of each Ingersoll Rand KVG 412 engine shall be limited as follows: NO X limits of 18 lbs/ hr, and 78 tpy; NMVOC limits of 3 lbs/hr, and 12 tpy. Texas Eastern shall use only low ask lubricating oil (0.5 percent or less) in the IR KVG-410 engines. The catalytic convertor of the IR KVG-410 engines shall be equipped with a high temperature alarm and/or shutdown set at 1,350 degrees Fahrenheit or less. The catalysts of these engines shall be physically inspected annually for damage and fouling. A log shall be kept detailing all actions taken to maintain catalyst performance. This file shall be maintained for at least two years and made available to PADEP upon request. Texas Eastern must continuously monitor and record O 2 levels prior to the catalyst on each IR KVG-410 engine. The O 2 levels shall be maintained below 0.5 percent on each engine. Texas Eastern's Delmont Station is required to perform a minimum of one (1) stack test in accordance with 25 PA Code Chapter 139 and PADEP's Source Testing Manual on all sources every five years to verify emission rates for NO X (as NO 2 ) and NMVOC. Testing shall be conducted while engines are operating at full load, full speed, and during the ozone season (April to October). All sources operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the emission rates through either an EPA method stack test or through the use of portable analyzers. All sources operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the emission rates through either an EPA method stack test or through the use of portable analyzers. For those tests utilizing portable analyzers, the source shall submit a complete operating procedure, including calibration, QA/QC, and emissions calculation methods to the PADEP at least 60 days prior to testing. The accuracy of the portable analyzer readings shall be verified by operation and recording of readings during EPA method stack testing. Results from stack test using portable analyzers shall be retained by the company at the test location and provided annually with the emission statements and at other times as requested by the PADEP. Texas Eastern shall submit a pretest protocol for review at least 60 days prior to performance of the stack tests. The PADEP shall be notified at least two weeks in advance of the test, so that an observer may be present. Two copies of the stack test shall be supplied to the PADEP for review within 60 days of the testing. Reductions in the allowable emission rates below the levels established by this permit shall not be available as ERCs pursuant to 25 Pa. Code section 127.206 unless the reductions are achieved through real reductions of actual or allowable emissions, whichever is lower, through the installation of controls beyond those required by RACT or any other subsequent regulatory requirement. Annual limits must be met on a rolling monthly basis over every consecutive 12 month period. The source shall maintain records in accordance with the record keeping requirements of 25 PA Code section 129.95. At a minimum, the following records shall be kept: operating hours, daily fuel consumption, operating pressures, and operating temperatures. These records shall be maintained for not less than two years and shall be made available to PADEP upon request.

EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in its SIP-approved RACT regulations applicable to these sources. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for eight major sources located in the Pittsburgh area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 4, 2001 without further notice unless EPA receives adverse comment by September 19, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if adverse comment is received for a specific source or subset of sources covered by an amendment, section or paragraph of this rule, only that amendment, section, or paragraph for that source or subset of sources will be withdrawn.

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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for eight named sources.

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 October 19, 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from eight individual sources in the Pittsburgh Beaver Valley area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f)) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania. State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are: (1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment; (2) all sources covered by a CTG issued prior to November 15, 1990; and (3) all major non-CTG sources. The regulations imposing RACT for these non-CTG major sources were to be submitted to EPA as SIP revisions by November 15, 1992 and compliance required by May of 1995.

The Pennsylvania SIP already includes approved RACT regulations for all sources and source categories covered by the CTGs. On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NO X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO X RACT requirements. In the Pittsburgh area, a major source of VOC is defined as one having the potential to emit 50 tons per year (tpy) or more, and a major source of NO X is defined as one having the potential to emit 100 tpy or more. Pennsylvania's RACT regulations require sources, in the Pittsburgh area, that have the potential to emit 50 tpy or more of VOC and sources which have the potential to emit 100 tpy or more of NO X comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO X sources. For other major NO X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP. On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NO X RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrate that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NO X RACT regulations by submitting 485 case-by-case VOC/ NO X RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. The regulation currently retains its limited approval status. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties; the limited approval of Pennsylvania's generic VOC and NO X RACT regulations shall convert to a full approval for the Pittsburgh area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NO X emissions in the form of a NO X cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NO X SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NO X SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NO X SIP call rule SIP submittal. EPA expects to publish the final rulemaking in the Federal Register in the near future. Federal approval of a case-by-case RACT determination for a major source of NO X in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On July 1, 1997 and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to five of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of plan approval and agreement upon consent orders (COs) and enforcement orders (EOs) issued by the Allegheny County Health Department (ACHD). These five sources are located in the Pittsburgh area. The table below identifies the sources and individual COs and EO which are the subject of this rulemaking. A summary of the VOC and NO X RACT determinations for each source follows the table.

Pruett Schaffer Chemical Company is a paint and related coatings manufacturer located in Pittsburgh, Allegheny County, Pennsylvania. Pruett Schaffer Chemical Company had potential emissions VOC of greater than 50 tons per year (tpy). ACHD issued the facility CO 266. On April 19, 2001, PADEP submitted this CO to EPA on behalf of the ACHD as a SIP revision. The facility consists of two paint manufacturing processes and a storage tank that stores mixed hydrocarbon solvent. Manufacturing is by batch process only. CO 266 does not allow the facility to operate unless the total combined potential facility-wide annual VOC emissions are less than 50 tons per year . In order to limit the potential VOC emissions, the maximum dispersers solvent-based production should not exceed 115,000 gallons per year and 1,965 hours annually. The solvent-based coatings is any coatings with a VOC content equal or greater than 3.5 pounds per gallon, less water and exempt solvents. Annual VOC emissions are determined by EPA AP-42 emission factors applied to the material throughput. Under CO 266, Pruett Schaffer Chemical Company must maintain records to demonstrate compliance with this CO and Article XXI, section 2105.06. Recordkeeping shall include but not limited to records of material type, monthly material usage, total monthly hours of operation, production records of process equipment and monthly usage and type of cleaning solvent used for cleaning and purging equipment, sufficient to perform emission calculations. Compliance with all annual limits must be met on a rolling monthly basis over every consecutive 12 month period and all records shall be maintained at the facility on a twelve months rolling total in order to determine compliance. All records shall be retained for at least five years.

PPG Industries, Inc. (PPG) is a resin and paint manufacturing facility located in Springdale, Allegheny County, Pennsylvania. PPG is a major VOC emitting facility. In this instance, RACT has been established and imposed by ACHD in CO 254. On July 1, 1997, PADEP submitted this CO to EPA on behalf of the ACHD as a SIP revision. PPG is a manufacturer of coatings and resins for the general industrial and automotive markets. Manufacturing facilities in this Springdale site include a paint plant and a resin manufacturing plant. The paint plant manufactures coatings for aluminum extrusions, automotive refinishing, and the general industrial and coil coating markets. The resin plant manufactures high temperature polyesters, alkyds, modified epoxies, urethanes and cross linkers for use in paint manufacture.

CO 254 does not allow PPG to operate the resin plant at any time while generating VOC emissions unless the facility's thermal oxidizer is in service and all associated emission control systems are operating as required with the conditions of the CO, with the exception of required maintenance and/or repairs. The CO requires that the thermal oxidizer should be properly maintained and operated at all times, with instrumentation to continuously monitor and record the incinerator temperature, with one of three alternative requirements being met and maintained: (a) minimum VOC destruction efficiency of 95 percent by weight; or (b) maximum outlet of 20 ppm VOC by volume (dry basis); or (c) minimum incineration temperature of 1500 degrees Fahrenheit. The thermal oxidizer destruction efficiency shall be determined every five years in accordance with EPA approved test methods and section 2108.02 of Article XXI of ACHD's regulations. All reactor vessels should be equipped with condenser units. The following resin process systems shall be vented to the thermal oxidizer unit at all times when generating VOC emissions: (a) four reactor condenser vents, (b) five raw material weigh tanks, (c) four manual ejectors, (d) five mixers-resin thin down tanks, and (e) seven blenders. Revent systems shall be provided for the following processes: (a) molten raw material storage tanks, (b) molten raw material weigh tanks, (c) mixer unit during product dropping, and (d) finished product tank wagon loading. Dispensing systems shall be used unless they are closed design or minimize free-fall liquids. Under CO 254, PPG must operate and maintain all process and control equipment according to good engineering and air pollution control practices. To minimize VOC emissions, process equipment cleaning must be conducted, floor cleaning operations must employ water based cleaners, and the use of solvents will be limited to spot cleaning. Under CO 254, PPG must maintain records to demonstrate compliance with this CO and Article XXI, section 2105.06. Recordkeeping shall include but not limited to (a) REECO thermal oxidizer destruction efficiency tests, and (b) daily records of REECO thermal oxidizer operating temperatures. All records shall be retained for at least five years.

CO 254 does not allow PPG to process operations involving VOCs at the facility unless all stationary mixers are equipped with covers which completely enclose the mixer openings, except for an opening no larger than necessary to allow safe clearance for a mixer shaft. Such covers shall either extend at least one-half inch beyond the outer rim of the vessel or be attached to the rim. CO 254 also does not allow any stationary mixer operations at the facility unless all covers are closed at all times except when production, sampling, maintenance or inspection procedures otherwise requires access. Portable and stationary vessels must not be used at the facility to process products containing VOCs unless the covers are maintained in good condition, such that when in place, they maintain contact with their respective rims for at least 90 percent of the circumference of the rim. Dispensing systems must not be used unless they are of closed design or minimize free-fall of liquids and filling of solvent borne coatings must not be performed unless they are in a closed system. All grinding mills must be of completely closed design.

Under CO254, PPG must operate and maintain all process and control equipment according to good engineering and air pollution control practices. To minimize VOC emissions, process equipment cleaning must be conducted, floor cleaning operations must employ waterbased cleaners, and the use of solvents will be limited to spot cleaning. Under CO 254, PPG must maintain records to demonstrate compliance with this CO and Article XXI, section 2105.06. Recordkeeping shall include but not limited to (a) records of specific solvents and quantities used, and (b) records of paint production rates by number of batches and quantity of paint produced in each batch. All records shall be retained for at least five years.

Reichhold Chemicals, Inc. (RCI) owns a synthetic hydrocarbon resins manufacturing facility located in Bridgeville, Allegheny County, Pennsylvania. RCI had the potential to emit NO X in excess of 100 tpy. In this instance, ACHD issued CO218 to RCI. On July 1, 1997, PADEP submitted this CO to EPA on behalf of the ACHD as a SIP revision. The facility consists of six reactors housed in two buildings with emissions controlled by thermal oxidizers. Under CO 218, RCI is not allowed to exceed 95 tons per year of total combined annual facility wide emissions of NO X . Under CO 218, RCI must maintain records to demonstrate compliance with this CO and Article XXI, section 2105.06. Recordkeeping shall include but not limited to the type of fuel and amount used. All records shall be retained for at least two years.

The RCI synthetic hydrocarbon resins manufacturing facility located in Bridgeville, Allegheny County, Pennsylvania had the potential to emit VOC in excess of 50 tpy. In this instance, ACHD issued CO 219 to RCI. On July 1, 1997, PADEP submitted this CO to EPA on behalf of the ACHD as a SIP revision. The facility consists of six reactors housed in two buildings with emissions controlled by thermal oxidizers. Under CO 219, RCI is limited to a facility-wide emission limit of 47 tons per year of combined emissions of VOC. CO 219 does not allow RCI the associated process equipment to operate unless the thermal oxidizers are properly maintained and operated with: (a) a minimum destruction efficiency of 95 percent; (b) a minimum operating temperature of 1400 degrees Fahrenheit; and (c) a minimum residence time of one-half seconds at all times. In case of a malfunction, RCI may finish processing the material in the associated equipment at the time of malfunction. RCI must not allow the process equipment to operate unless the emissions from the reactors, process vessels, emissions from the reactors and thin tanks are conveyed to their respective thermal oxidizers. CO 219 requires RCI to provide instrumentation for the thermal oxidizers to continuously monitor and record the following: (a) Operating temperature; (b) oxygen level; and (c) fume (inlet) pressure. RCI must record the following information on a daily basis for all reactors: (a) Batch time; (b) finished product per batch; and (c) raw material feed per batch. RCI must conduct emission testing on the thermal oxidizers no less than once every five years to determine the destruction efficiency of VOCs per unit. RCI must submit a written protocol to ACHD for approval at least 45 days prior to the date of the test, and notify ACHD in writing at least 30 days prior to the date of the test. Testing shall not proceed without ACHD approved protocol and according to EPA approved test methods. Under CO 219, RCI must maintain records to demonstrate compliance with this CO and Article XXI, section 2105.06. All records shall be retained for at least two years.

Valspar Corporation (Valspar) is a paint manufacturing facility located in Pittsburgh, Allegheny County, Pennsylvania. Valspar is a major VOC emitting facility. In this instance, RACT has been established and imposed by ACHD in EO 209. On July 1, 1997, PADEP submitted this EO to EPA on behalf of the ACHD as a SIP revision. EO 209 does not allow Valspar to process operations involving VOCs at the facility unless all stationary mixers are equipped with covers which completely enclose the mixer openings, except for an opening no larger than necessary to allow safe clearance for a mixer shaft. Such covers shall either extent at least one-half inch beyond the outer rim of the vessel or be attached to the rim. EO 209 does not allow any stationary mixer operations at the facility unless all covers are closed at all times except when production, sampling, maintenance or inspection procedures otherwise requires access. EO 209 does not allow stationary mixers to process products containing VOCs unless the covers are maintained in good condition, such that when in place, they maintain contact with their respective rims for at least 90 percent of the circumference of the rim. Under EO 209, Valspar must maintain records to demonstrate compliance with this EO and Article XXI, section 2105.06. All records shall be retained for at least two years. Also, under EO 209, Valspar must operate and maintain all process and emission control equipment according to good engineering practice.

EPA is approving these RACT SIP submittals because ACHD and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The ACHD and PADEP have also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for five major sources located in the Pittsburgh area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 4, 2001 without further notice unless EPA receives adverse comment by September 19, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if adverse comment is received for a specific source or subset of sources covered by an amendment, section or paragraph of this rule, only that amendment, section, or paragraph for that source or subset of sources will be withdrawn.

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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for five named sources.

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 October 4, 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from five individual sources in the Pittsburgh-Beaver Valley ozone nonattainment area of Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f)) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are: (1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment; (2) All sources covered by a CTG issued prior to November 15, 1990; (3) All other major non-CTG rules were due by November 15, 1992 and apply to the Pennsylvania submittal. The Pennsylvania SIP has approved RACT regulations and requirements for all sources and source categories covered by the CTG's.

On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NO X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO X RACT requirements. In the Philadelphia area, a major source of VOC is defined as one having the potential to emit 25 tons per year (tpy) or more, and a major source of NO X is also defined as one having the potential to emit 25 tpy or more. Pennsylvania's RACT regulations require sources, in the Philadelphia area, that have the potential to emit 25 tpy or more of VOC and sources which have the potential to emit 25 tpy or more of NO X comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO X sources. For other major NO X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NO X RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrate that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NO X RACT regulations by submitting 485 case-by-case VOC/ NO X RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. The regulation currently retains its limited approval status. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties; the limited approval of Pennsylvania's generic VOC and NO X RACT regulations shall convert to a full approval for the Philadelphia area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NO X emissions in the form of a NO X cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NO X SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NO X SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NO X SIP call rule SIP submittal. EPA expects to publish the final rulemaking in the Federal Register in the near future. Federal approval of a case-by-case RACT determination for a major source of NO X in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On September 20, 1995, April 16, 1996, May 2, 1996, July 2, 1997, July 24, 1998, December 7, 1998, April 9, 1999, and April 20, 1999, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several sources of VOC and/or NO X . This rulemaking pertains to 18 of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of plan approvals and operating permits which impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Philadelphia area.

The table below identifies the sources and the individual plan approvals (PAs) and operating permits (OPs) which are the subject of this rulemaking. A summary of the VOC and NO X RACT determinations for each source follows the table.

Amerada Hess Corp. (Amerada) operates a gasoline terminal in Philadelphia, Pennsylvania. Amerada maintains 3 gasoline and 7 distillate oil storage tanks. Amerada also operates a loading rack. VOC RACT is applicable to Amerada based on the facility's potential emissions. Amerada is not a major NO X -emitting source. The gasoline and distillate oil storage tanks at this facility are covered by existing SIP-approved Pennsylvania VOC RACT regulations. The loading rack is equipped with a vapor recovery unit. The Philadelphia Air Management Services (AMS) issued PA 50-5009 to Amerada. The PADEP submitted PA 50-5009 to EPA as a SIP revisions, on behalf of AMS. The AMS determined that VOC RACT for Amerada's fugitive VOC emissions is the implementation of a visual leak detection and repair (LDAR) program for all pumps, valves, and flanges at the facility. This LDAR program will be conducted quarterly. The records containing the details of all inspections and repairs will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Amoco Oil Company (Amoco) owns and operates a gasoline terminal in Philadelphia, Pennsylvania. Amoco maintains 5 gasoline storage tanks and operates a loading rack. Amoco is subject to VOC RACT. Amoco is not a major NO X -emitting source. The AMS issued PA 50-5011 to Amoco. The PADEP submitted PA 50-5011 to EPA as a SIP revision on behalf of AMS. The gasoline storage tanks at this facility are covered by existing SIP-approved Pennsylvania VOC RACT regulations. The loading rack is equipped with a vapor recovery unit. The VOC RACT determination for Amoco's fugitive VOC emissions consists of implementation of a LDAR program for all pumps, valves, and flanges at the facility. This LDAR program will be conducted every other month. The records containing the details of all inspections and repairs will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Cartex Corporation (Cartex) operates a polyurethane foam manufacturing line at its facility in Bucks County, Pennsylvania. The PADEP issued OP 09-0076 to Cartex and submitted it to EPA as a SIP revision. Cartex produces polyurethane foam seat cushions. Urethane is injected into a mold along with a mold releasing agent to aid in the release of the polyurethane foam seat cushions. There are cleaning activities associated with the use of polyurethane on this production line that are responsible for fugitive VOC emissions. VOC RACT is applicable to Cartex based on the facility's potential emissions. Cartex is not a major NO X -emitting source. Cartex is subject to SIP-approved RACT regulation 25 Pa Code 129.91-129.95. OP 09-0076 requires the use of electrostatic or high volume low pressure application equipment for the application of the mold releasing agents employed at this facility. The operating permit imposes VOC emission limits of 28.1lbs/hr and 49 tons per year (tpy) from Cartex's polyurethane foam manufacturing line and 2.7 tpy from the use of clean-up solvents. The annual limits must be met on a rolling monthly basis over every consecutive 12 month period. The OP includes the record-keeping requirements necessary to demonstrate compliance. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Exxon Company, U.S.A. (Exxon) owns and operates a gasoline terminal in Philadelphia, Pennsylvania. The site stores gasoline, distillate oil, and additives in its 13 storage tanks. This facility also operates a loading rack. Exxon is subject to VOC RACT based on the facility's potential emissions. Exxon is not a major NO X -emitting source. The gasoline, distillate oil and additive storage tanks at this facility are covered by existing SIP-approved Pennsylvania VOC RACT regulations. The loading rack is equipped with a vapor recovery unit. The AMS issued PA 51-5008 to Exxon, and PADEP submitted it to EPA as a SIP revision. The AMS determined RACT for Exxon's fugitive VOC emissions as the implementation of a LDAR program for all pumps, valves, and flanges at the facility. This LDAR program shall be conducted quarterly. The records containing the details of all inspections and repairs will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

GATX Terminals Corporation (GATX) owns and operates a bulk storage terminal in Philadelphia, Pennsylvania. The facility's operations include loading and unloading a mixture of organic compounds from barge or ship to storage tanks. Tank rail cars and trucks are loaded from the storage tanks. Support equipment involved in maintaining these operations include, a thermal oxidizer, boilers, oil/water separators, and storage tanks. Fugitive emissions come from the many valves, flanges, and pumps located throughout the terminal. Based on the potential emissions, GATX is subject to a case-by-case VOC and NO X RACT evaluation pursuant to 25 Pa Code 129.91(d). The AMS issued PA-51-5003 to GATX to establish VOC and NO X RACT, and PADEP submitted it to EPA as a SIP revision. The PA imposes an annual VOC emissions limit of 59 tpy for GATX's marine vessel loading operations. The marine vessel loading operations will not process petroleum distillate with a vapor pressure greater than 4 Reid vapor pressure (RVP). The 11 tank/truck loading racks are limited to a vapor pressure lower than 4 RVP when processing organic liquids. An emissions cap of 129 tpy of VOC applies to the tank/truck loading racks. The annual limits must be met on a rolling monthly basis over every consecutive 12 month period. There are 6 loading racks that vent to a thermal oxidizer in compliance with 25 Pa Code 129.59. GATX operates 2 boilers in compliance with 25 Pa Code 129.93(c)(1). The storage tanks at this facility are also regulated by existing SIP-approved Pennsylvania RACT regulations. AMS' case-by-case determination for GATX's fugitive VOC emissions imposes implementation of an LDAR program for all pumps, valves, and flanges at the facility. This LDAR program will be conducted quarterly. The records containing the details of all inspections and repairs will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Hatfield Quality Meats, Incorporated (Hatfield) is a meat packing facility. The majority of the emission sources at this facility are subject to SIP-approved presumptive RACT regulations found in Pa Code 129.93, with the exception of a Cleaver-Brooks boiler rated at 50 million British thermal units per hour (MMBtu/hr). All sources above de minimis levels at this facility are already regulated by existing requirements. The PADEP issued OP 46-0013A to Hatfield restricting the heat input of the Hatfield Cleaver-Brooks boiler to no more than 49 MMBtu/hr. This boiler is subject to 25 Pa Code 129.93(b)(2).

J. L. Clark Inc. (J. L. Clark) operates a decorative metal can coating and graphic arts facility in Lancaster County, Pennsylvania. J. L. Clark produces high quality metal cans using automation, state of the art computerized graphics and precision lithography. J. L. Clark uses high solids coatings. The sources subject to a case-by-case VOC RACT evaluation pursuant to 25 Pa Code 129.91(d) include 3 surface coating lines and 3 printing/surface coating lines. J. L. Clark is not a major NO X -emitting source. The Commonwealth issued OP 36-02009 to require RACT for the coating operations as the use of surface coatings that meet the allowable limits listed in 25 Pa Code 129.52 for miscellaneous metal parts, or use of incineration to comply with the control efficiency requirements of 25 Pa Code 129.52 (b)(2), with incineration occurring at a minimum operating temperature of 1400 degrees F with a minimum retention time of 0.3 seconds. The heatset lithographic printing operations at this facility will also use thermal incineration to control the VOCs from the dryers exhaust. Incineration shall not be used when printing inks or varnishes cover less than 50 percent of the sheets as this level of coverage represents minor emissions. OP-36-02009 requires improved work practice standards for the cleaning operations. Records containing data necessary to calculate the VOC content of the coatings and cleaning solvents must be kept by J. L. Clark and reported to the PADEP annually. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Johnson Matthey, Incorporated (Johnson Matthey), operates a catalytic converter manufacturing and Research and Development (R&D) facility in Chester County, Pennsylvania. Johnson Matthey uses 5 surface coating lines and various drying ovens to manufacture autocatalysts. The majority of this facility's VOC and NO X emissions result from the exhaust released from the thermal breakdown of the coatings applied to the autocatalysts. Johnson Matthey currently uses caustic scrubbing to treat the exhaust that comes from the ovens. Caustic scrubbing helps to remove acetic acid, acetaldehyde, formaldehyde, and hydrochloric acid at high efficiencies. The combination of these chemicals in addition to acetone excludes other VOC and NO X control technologies ( i.e. , carbon adsorption and incineration) from consideration. The Commonwealth issued a revised version of OP 15-0027 to Johnson Matthey on April 15, 1999 to establish VOC and NO X RACT. The OP imposes VOC limits of 3.0 lbs/hr, 15.0 lbs/day and 2.7 tpy on the Devon I & II Hoods, Devon I Oven and Devon II Engine Test Cells and annual NO X limits of 0.08 tpy, 2.1 tpy and 11.0 tpy, respectively on these units. Lines No. 1 & 2 PGM Drying Ovens, PGM Coater, and Stabilizer & Hard Fire Drying Ovens are limited to 98.3 tpy of NO X . Lines No. 3 & 4 Stabilizer, Hard Fire and PGM Drying Ovens, and lines No. 3 & 4 PGM coater, Devon II PGS Coater and Devon II PSG Oven are limited to annual NO X limits of 26.6 tpy. The OP also imposes an operational limitation of 500 hr/year on the facility's Detroit Emergency Generator and Caterpillar Emergency Generators. The OP imposes pressure drop requirements and other operational requirements on the facility's scrubbers. All annual limits must be met on a rolling monthly basis over every consecutive 12 month period. All process equipment and any associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices. The OP requires Johnson Matthey to record and maintain all the information necessary to determine compliance in accordance with 25 Pa Code section 129.95.

Kurz Hastings, Incorporated (Kurz), owns and operates a printing facility in Philadelphia, Pennsylvania. The facility is equipped with an ink mixing area that consists of mixing vessels, storage tanks, and drums containing raw materials. The mixing room and the cleaning operations at the facility are subject to a case-by-case RACT evaluation. Based on the potential emissions, Kurz is subject to a case-by-case VOC RACT evaluation pursuant to 25 Pa Code 129.91(d).

The AMS issued PA 51-1585 to Kurz imposing work practice standards on the ink mixing area as RACT. The PADEP submitted PA 51-1585 to EPA as a SIP revision on behalf of AMS. Kurz will comply with RACT for VOC by implementing work practices including that all containers of VOC materials be covered when not in use, that the mixing stations be equipped with lids to minimize emissions while in use, that instructions be posted to prevent spills, that all spills be cleaned-up immediately and all cleaning materials be disposed of in closed containers. The OP specifies that the combustion sources at Kurz are subject to the SIP-approved presumptive RACT limits of 25 Pa Code 129.93(c). All combustion sources must be installed, operated, and maintained in accordance with manufacturers' specifications. The records containing the details necessary to determine compliance will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

The Lawrence McFadden Company (Lawrence) is a paint manufacturing facility. The paint manufacturing process involves blending pigments with solvents. These mixtures are packaged as final product. The majority of Lawrence's fugitive emissions come from its lacquer manufacturing area. Lawrence is subject to a case-by-case VOC RACT evaluation pursuant to 25 Pa Code 129.91(d). The AMS issued PA 51-2074 to Lawrence to establish VOC RACT, and PADEP submitted it to EPA as a SIP revision. The PA imposes a 50 tpy limit of VOC on the facility to be met on a rolling monthly basis over every consecutive 12 month period. The PA also imposes improved operating procedures and standards in accordance with CTG, Control of VOC Emissions from Ink and Paint Manufacturing Processes, EPA-450/3/92-013. The PA also specifies that the 2 combustion sources at Lawrence are subject to the SIP-approved presumptive RACT limits of 25 Pa Code 129.93(c). All combustion sources must be installed, operated, and maintained in accordance with manufacturers' specifications. The records containing the details necessary to determine compliance will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Philadelphia Baking Company (PBC), owns and operates a bread production facility in Philadelphia, Pennsylvania. The facility operates 2 baking ovens (A & B) and 2 boilers (#1 & #2). The boilers each have a rated capacity of less than 10 MMBtu/hr and fire natural gas or propane. The oven heaters fire natural gas or propane. The baking ovens emit VOC (ethanol) from miscellaneous baking products (yeast products) driven off during the baking process. PA-51-3048 was issued to PBC by AMS to establish VOC RACT, and PADEP submitted it to EPA as a SIP revision. AMS requires the use of a catalytic oxidizer on baking ovens A and B. The catalytic oxidizer must comply with the SIP-approved RACT requirements of 25 Pa Code 129.91(f). The two small boilers are subject to the SIP-approved presumptive RACT limits of 25 Pa Code 129.93(c). The records containing the details necessary to determine compliance will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Philadelphia Gas Works (PGW) owns and operates a natural gas storage and distribution facility in Philadelphia, Pennsylvania. The facility's emissions result from the use of boilers, natural gas heaters, natural gas engines for electric generation, liquified petroleum (LP)-Air natural gas turbines, and LPG vaporizers. Based on the potential emissions, PGW is subject to a case-by-case NO X RACT evaluation pursuant to 25 Pa Code 129.91(d). This facility is not a major source of VOC. The Philadelphia AMS issued PA 51-4921 to PGW to establish NO X RACT, and PADEP submitted it to EPA as a SIP revision. The PA requires the shutdown of PGW's two 96 MMBtu/hr synthetic natural gas boilers and 6 natural gas engines, and the replacement of these boilers with three 58.7 MMBtu/hr boilers that fire natural gas only and are equipped with Peabody parallel flow multi-staged low NO X burners. These boilers are limited to 0.1 lbs of NO X /MMBtu. PA 51-4921 requires that PGW conduct performance tests on these boilers. The remainder of the combustion sources at this facility are subject to the SIP-approved presumptive RACT requirements of 25 Pa Code 129.93(c). The records containing the details necessary to determine compliance will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

PPG Industries, Incorporated (PPG) located in Delaware County, Pennsylvania, manufactures a variety of surfactants via batch processing. The facility includes a CI filter press, drop tanks, still feed tank, vacuum pump/atmospheric receiver, slurry tanks and a number of surge, recovery, and storage tanks containing fatty acids, alcohols and other non-ionics. The VOC emissions emanate primarily from the use of isopropyl alcohol (IPA). The facility's fugitive emissions result from leaking valves, pumps, and flanges. Based on the potential emissions, PPG is subject to a case-by-case VOC RACT evaluation pursuant to 25 Pa Code 129.91(d). This facility is not a major NO X -emitting source. The PADEP imposes RACT for PPG in OP 23-0005. The PPG must use a catalytic thermal oxidizer (CTO) to control VOC emissions from the CI filter press, drop tanks, still feed tank, vacuum pump/atmospheric receiver, and slurry tanks. The operation of these sources must be terminated if the CTO is inoperable. The overall efficiency of the CTO must be 95 percent. The CTO must maintain a minimum temperature of 470 degrees F and must be equipped with a visual means of monitoring the secondary combustion chamber exit gas temperature. There are two (2) drop tanks at this facility that will use a water cooled condenser as the primary control device, prior to being vented to the CTO. The dryer vacuum pump/atmospheric receiver's primary control device is a chilled IPA condenser which must achieve an overall 90 percent removal efficiency prior to being vented to the CTO. The condenser controlling the drop tanks must maintain a temperature of 100 degrees F or less, and the condenser controlling the dryer vacuum pump/atmospheric receiver must maintain a temperature of 80 degrees F or less. The CI filter press, drop tanks, still feed tank, vacuum pump/atmospheric receiver, slurry tanks identified as Sources, 101, 102a, 102b, 103, 104, 105a and 105 b must limit their VOC emissions to 26.5 lbs/hr, and 8.80 tpy. The alcohol and fatty acid tanks identified as Sources 106a and 106b are limited to VOC emissions of 0.5 lbs/hr and 4.4 tpy. The CI piping component fugitives identified as Source 108 must limit VOC emissions to 9.2 lbs/hr and 15.0 tpy. The non-IPA fugitive emissions identified as Source 109 must limit VOC emissions to 9.2 lbs/hr and 15.0 tpy. The CI reactor at this facility is a de minimis source of VOC emissions and is limited by OP 23-0005 to VOC emissions rates of no greater than 3.0 lbs/hr, 15.0 lbs/day, and 2.7 tpy. The records containing the details necessary to determine compliance will be collected and retained in compliance with 25 Pa Code 129.95. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

SmithKline Beecham Pharmaceuticals (SmithKline) operates a Research and Development (R&D) facility located in Montgomery County, Pennsylvania. The R&D facility develops new pharmaceutical products. SmithKline is a major emitter of both NO X and VOC. The PADEP issued OP 46-0035 to impose VOC and NO X RACT for SmithKline. Boilers 2 and 3W, rated at 51 MMBtu/hr, are derated to 49 MMBtu/hr. The OP requires the installation of flow transmitters on the existing natural gas orifice plates to permanently restrict the maximum gross heat input of the boilers. The OP specifies a natural gas and fuel oil limitations of less than 49,000 ft 3 /hr. and 327 gallons/hr, respectively. Boilers 44 and 45 will operate low NO X burners with flue gas recirculation. The total amount of No. 2 fuel oil fired in Boilers 44 and 45 shall not exceed 478 and 286 gallons, respectively in any 12-month rolling period. NO X emissions from the boilers are limited to 30 ppm corrected to 3.0 percent oxygen content when firing natural gas and to 140 ppm corrected to 3.0 percent oxygen when firing No. 2 fuel oil, and 8.2 tpy in a 12 month rolling period. The remainder of the boilers at this facility over 20 MMBtu/hr must perform annual adjustments under 25 Pa Code § 129.93(b)(2) in accordance with EPA guidance document, Combustion Efficiency Optimization Manual for Operators of Oil and Gas-fired Boilers , EPA-340/1-83-023, September 1983. The VOC RACT analysis determined that RACT for the boilers (5-15, 1 and 4W) along with the 3 pathological waste incinerators and the emergency generators will be maintenance and operation in accordance with the manufacturer's specifications and good air pollution engineering control practices. The boilers at this facility have low concentrations of VOC emissions in the exhaust streams. There are no technically viable control technologies for controlling VOC emissions at these low levels. OP 46-0035 specifies that SmithKline will apply white paint to its ethyl acetate storage tanks (V-301-V-306) or install new pressure relief vents. All requirements and records necessary to determine compliance are specified in OP 46-0035. All process equipment and associated air pollution control devices must be maintained and operated in accordance with good engineering and air pollution control practices.

Teva Pharmaceuticals USA (Teva) operates a pharmaceutical manufacturing facility in Bucks County, Pennsylvania. Teva manufactures acetaminophen. Production of acetaminophen tablets involve mixing a binding agent in solution with isopropyl alcohol. The VOC emissions emanate as the alcohol is removed from the product during the drying stage in the ovens. The PADEP issued OP 09-0010 to Teva. The PADEP determined VOC emissions have been reduced drastically due to Teva's use of the direct compression process in their acetaminophen production operations. Direct compression does not require the use of a binding agent to produce a granulated product for compression on the tablet press. The PADEP RACT determination requires Teva to use less isopropyl alcohol and to employ no dryer in this new manufacturing process. Total VOC emissions from the facility shall not exceed 24.0 tpy calculated as a 12 month rolling sum over every consecutive 12 month period. The records containing the details necessary to determine compliance will be collected and retained in compliance with 25 Pa Code 129.95.

The Philadelphian Condominium Building (PCB) owns and operates a 2,200 horse power Cooper Superior dual fuel reciprocating engine in its condominium building. The engine burns natural gas and diesel fuel. Based on the potential emissions, PCB is subject to a case-by-case NO X RACT evaluation pursuant to 25 Pa Code 129.91(d). This facility is not a major VOC-emitting source. The Philadelphia AMS issued PA 51-6512 to PCB, and PADEP submitted it to EPA as a SIP revision. The AMS determined NO X RACT for PCB to be the implementation of injection timing retard on its dual fuel reciprocating engine. The PA limits the NO X emissions from the stack outlet to 4.1 grams per brake-horsepower-hour and 69 tpy. The annual limit must be met on a rolling monthly basis over every consecutive 12 month period. The records containing the details necessary to determine compliance will be collected and retained in compliance with the RACT requirements of 25 Pa Code 129.91-129.94.

Warner Company (Warner) located in Chester County, Pennsylvania manufactures lime. Warner operates two (2) rotary lime kilns that fire pulverized bituminous coal. Rotary lime kiln No. 2 has a heat capacity of 95 MMBtu/hr. Rotary lime kiln No. 3 is rated at 85 MMBtu/hr. Warner is a major source of NO X . Warner is not subject to a case-by-case VOC RACT evaluation pursuant to 25 Pa Code 129.91(d). The PADEP imposes RACT in OP 15-0001. The OP requires the installation of an oxygen combustion analyzer for rotary lime kilns No. 2 & 3. The NO X limit for kiln No. 2 is 0.45 lbs of NO X /MMBtu when firing pulverized bituminous coal and 0.46 lbs/MMBtu of NO X from Kiln No. 3 when firing pulverized bituminous coal. The hours of operation of the No. 2 & 3 lime kilns is limited to 7,920 hr/year to be met on a rolling monthly basis over every consecutive 12 month period. The PADEP determined that Warner's use of oxygen analyzers to fine tune the air flow rate in the combustion chamber of their pulverized coal fired kilns to reduce NO X as RACT. The OP requires that stack testing be performed in accordance with 25 Pa Code Chapter 139 and with additional conditions specified in OP 15-0001. All requirements and records necessary to determine compliance are specified in OP 15-0001.

Webcraft Technologies, Incorporated (Webcraft), operates a graphic arts facility. Webcraft is subject to both case-by-case VOC and NO X RACT evaluations pursuant to 25 Pa Code 129.91(d). The PADEP issued OP 09-0009 to Webcraft to impose VOC and NO X RACT. Total facility emissions of VOC (excluding Press No. 18) are limited to no more than 40.5 tpy. Total facility emissions of NO X from all combustion sources (excluding Press No. 18) are limited to no more than 24.23 tpy. Annual limits are to be met on a rolling monthly basis over every consecutive 12 month period. Webcraft uses 7 heatset web offset lithographic printing presses and 2 electropresses. The primary contributor of VOC emissions in these processes is the solvent in the ink, which is driven off in the drying ovens. VOC emissions at this facility also come from fountain solutions and cleaning solvents. Webcraft operates an automatic blanket washing system to remove ink from various press components, while some cleaning solvents are applied manually. The PADEP imposed VOC control requirements consistent with the September 1993 CTG (EPA-453/D-95-001) for the Offset Lithographic Printing Industry. The PADEP determined RACT for Webcraft's cleaning solvents as maintenance of low vapor pressure solutions. The fountain solution used on the printing presses does not contain isopropyl alcohol. Instead, Webcraft is required to use alcohol substitutes (2-butoxyethanol or butyl cellusolve) in its fountain solution. OP-09-0009 limits the fountain solution to a concentration of 3.0 percent of VOC or the use of refrigeration at or below 60 degrees F. The Combustion Engineering boiler (49 MMBtu/hr) and the Brian Water Tube boiler are limited to operating restrictions of 2,880 hours and 4,368 hours respectively during any 12-month rolling period. The Combustion Engineering Boiler's fuel consumption is limited to 99,360 gallons of No. 2 fuel oil per year. The 2 electropresses in use at this facility contain dryers that are designed to evaporate and remove toner solvents from the web, treat the solvent laden exhaust, and recycle a part of the treated exhaust air to the process with an efficiency of 99 percent. OP 09-0009 imposes more stringent requirements in conditions 12. A-M on Press No. 18. These include the use of a thermal oxidizer with a inlet temperature of 550 degrees F and a minimum destruction efficiency of 95 percent. Press No. 18 may only be operated when the thermal oxidizer and dryer are operational. The VOC emissions from Press No. 18 due to ink usage is limited to 5.15 tpy calculated as 20 percent of the ink retained on the paper and 95 percent of the ink leaving the press being destroyed by the thermal oxidizer. The total VOC from Press No. 18 from the use of ink, wetting, fountain solution and blanket wash/up clean-up solvent shall be limited to 7.40 tpy. The NO X emissions from the dryer are limited to 0.53 lbs/hr and 2.32 tpy. The VOC and NO X emission sources at this facility will be operated and maintained in a manner consistent with good air pollution engineering control practices. All requirements and records necessary to determine compliance are specified in OP 09-0009.

EPA is approving Pennsylvania's RACT SIP submittals because AMS and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the SIP revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for 18 major sources located in the Philadelphia area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 4, 2001 without further notice unless EPA receives adverse comment by September 19, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if adverse comment is received for a specific source or subset of sources covered by an amendment, section or paragraph of this rule, only that amendment, section, or paragraph for that source or subset of sources will be withdrawn.

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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for 18 named sources.

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 October 19, 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from 18 individual sources in the Philadelphia area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Section 111(d) of the CAA requires that “designated” pollutants controlled under standards of performance for new stationary sources by section 111(b) of the CAA must also be controlled at existing sources in the same source category. Also, section 129 of the CAA specifically addresses solid waste combustion. It requires EPA to establish emission guidelines (EG) for MWC units and requires states to develop state plans for implementing the promulgated EG.

The part 60, subpart Cb, EG for MWC units differ from other EG adopted in the past because the rule addresses both sections 111(d) and 129 CAA requirements. Section 129 requirements override certain related aspects of section 111(d).

On December 19, 1995, pursuant to sections 111 and 129 of the CAA, EPA promulgated new source performance standards (NSPS) applicable to new MWCs i.e., those for which construction was commenced after September 20, 1994) and EG applicable to existing MWCs. The NSPS and EG are codified at 40 CFR part 60, subparts Eb and Cb, respectively. See 60 FR 65387 and 65415. Subparts Eb and Cb regulate MWC emissions. Emissions from MWCs contain organics (dioxins/furans), metals (cadmium, lead, mercury), acid gases, (hydrogen chloride, sulfur dioxide, and nitrogen oxides), and particulate matter, including opacity.

On April 8, 1997, the United States Court of Appeals for the District of Columbia Circuit vacated subparts Cb and Eb as they apply to MWC units with the capacity to combust 250 tons per day (TPD) or less than of municipal solid waste (MSW), consistent with its opinion in Davis County Solid Waste Management and Recovery District v. EPA , 101 F.3d 1395 (D.C. Cir. 1996), as amended , 108 F.3d 1454 (D.C. Cir. 1997). As a result, subparts Eb and Cb were amended to apply only to MWC units with the capacity to combust more than 250 TPD of MSW per unit (i.e., large MWC units). Also, the amended EG made minor revisions to the emissions limitations for four pollutants—hydrogen chloride, sulfur dioxide, nitrogen oxides, and lead. The amended requirements of the NSPS and EG were published in the Federal Register on August 25, 1997. See 62 FR 45119 and 45124 for the EG amendments.

As a result of the Davis County litigation, noted above, compliance with supplemental EG emissions limits for hydrogen chloride, sulfur dioxide, nitrogen oxides, and lead could extend until August 26, 2002, or 3 years after EPA approval of the 111(d)/129 plan, whichever is earlier. However, section 129(f)(2) of the CAA states that requirements promulgated pursuant to sections 111 and 129 must be effective “as expeditiously as practicable after approval of a State plan.” As required by section 129(b)(3) of the CAA, on November 12, 1998 EPA promulgated a Federal Implementation Plan (FIP) for large MWCs that commenced construction on or before September 20, 1994. The FIP is a set of emissions limits, compliance schedules, and other requirements that implement the EG for MWC, as amended. The FIP is applicable to those large existing MWCs not specifically covered by an approved State plan under sections 111(d) and 129 of the CAA. Also, it fills a Federal enforceability gap until State plans are approved and ensures that the MWC units stay on track to complete, in an expeditious manner, required pollution control equipment retrofits on or before the final statutory compliance date of December 19, 2000.

On August 23, 1999 (64 FR 45880), EPA promulgated a conditional approval of Pennsylvania's large MWC 111(d)/129 plan. The conditionally approved Pennsylvania plan requires compliance with the original 1995 EG emissions limits by a date no later than December 19, 2000, and compliance with the 1997 EG supplemental emissions limits by a date no later than August 26, 2002, or 3 years after EPA approval of the 111(d)/129 plan, whichever is earlier. After considering the requirements of section 129(f)(2) and the FIP, including the related background information document (#0106-00-002-002, August 20, 1998), EPA determined that the final compliance dates for the supplemental emissions limits, as stipulated in the Pennsylvania 111(d)/129 plan's Federally enforceable state operating permits (FESOPs) and source-specific plan approval (i.e., construction permit), were not expeditious. The conditionally approved Pennsylvania plan contains no economic, technical, or other rationale to justify a compliance date extension until August 26, 2002 for the supplemental emissions limits. Accordingly, EPA considered the plan's interim and final compliance schedules approvable for the original 1995 EG emissions limits, but not the final compliance schedule (August 26, 2002, or 3 years after EPA approval of the state plan, whichever is earlier) for the 1997 supplemental emissions limits. See 62 FR 45116.

As previously stated, EPA promulgated a conditional approval of Pennsylvania's large MWC 111(d)/129 plan on August 23, 1999 (64 FR 45880). To fulfill the condition imposed by EPA, PADEP was required to amend the affected facility operating permits, as necessary, and include a final compliance date, no later than December 19, 2000, for the supplemental limits; and then submit the amended permits, as a 111(d)/129 plan revision, to EPA by August 22, 2000.

On July 7, 2000, PADEP formally submitted the required compliance schedule revisions through the use of amended operating permits. EPA has determined that PADEP has satisfied the condition imposed in the August 23, 1999 conditional approval. In addition, on August 15, 2000, the PADEP provided supplemental information that clarifies certain Lancaster County Solid Waste Management Authority operational requirements for its resource recovery facility's dry lime injection system and the determination of sulfur dioxide and hydrogen chloride percent emission reductions in the combustor units.

EPA is approving the revision to the Commonwealth's MWC 111d/129 plan submitted by PADEP on July 7, 2000 which requires compliance with the supplemental emissions limits by a date no later than December 19, 2000. As a result of this approval, the conditional nature of EPA's August 23, 1999 approval of the Pennsylvania large MWC 111(d)/129 plan is, hereby, removed and converted to a full approval. Also, EPA accepts the PADEP explanation regarding the operational requirements, noted above, for the Lancaster County Solid Waste Management Authority MWC facility. This action is being published without prior proposal because we view this as a noncontroversial amendment and because we anticipate no adverse comments. In a separate document in the “Proposed Rules” section of this Federal Register publication, we are proposing to approve the plan revision. This action will be effective without further notice unless we receive relevant adverse comment by September 19, 2001. If we receive such comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. Any parties interested in commenting must do so at this time. EPA will not institute a second comment period. If no such comments are received by September 19, 2001, you are advised that this action will be effective on October 4, 2001.

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. 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). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 submission, to use VCS in place of a 111(d)/129 plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 19, 2001. Filing a petition for reconsideration by the Administrator of this final rule converting EPA's conditional approval of the Commonwealth of Pennsylvania's MWC 111(d)/129 plan 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 Administrative Dispute Resolution Act (“ADRA”) was first promulgated in 1990 (Pub. L. 101-552), and subsequently amended in 1996 (Pub. L. 104-320). It defines ADR to mean any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombuds, or any combination thereof, 5 U.S.C. 571 (3).

The Federal Maritime Commission intends to expand the ADR services available from the Commission. Accordingly, the Commission published a notice of proposed rulemaking on May 21, 2001, 66 FR 27921, to amend part 502 of the Commission's rules.

The Commission received comments in response to the proposed rule from the National Customs Brokers and Forwarders Association of America, Inc. (“NCBFAA”) and Charles L. Measter, a member of the Society of Maritime Arbitrators Inc. (“SMA”).

NCBFAA states that it supports the policy behind the proposal, as well as most of the proposed provisions. However, NCBFAA makes three suggestions. First, NCBFAA takes issue with proposed § 502.406(a)(1) and suggests it be deleted. Second, NCBFAA does not believe the proposed rule provides for the use of discovery in arbitration proceedings, and believes the availability of discovery in such proceedings should be provided for in the rule. Third, NCBFAA believes it important that the rule provide for the taking of sworn testimony in arbitration proceedings.

NCBFAA appears to read proposed § 502.406(a)(1) as barring the use of ADR procedures whenever a component of the Commission is a party, and urges that the exemption of the Commission and its components as parties in § 502.406(a)(1) be deleted. However, that provision bars the Commission or one of its components from participating as a party only in arbitration proceedings. The Commission concurs with NCBFAA that mediation can be an effective way to resolve disputes, even when a component of the Commission is a party. The proposed rule would allow for the use of mediation or other means of assisted negotiation in such situations. Under the ADRA, however, before the Commission or one of its components, as a party, could agree to arbitrate a matter, the Commission must develop and issue guidance on the appropriate use of binding arbitration, including when an officer or employee of the Commission has authority to settle an issue in controversy through binding arbitration. Such guidance must be issued prior to the use of binding arbitration and after consultation with the Attorney General. See 5 U.S.C. 575(c). The Commission has not sought to obtain approval of such provisions by the Department of Justice. Moreover, the Commission would not be in a position to review an arbitrator's decision, as it is with respect to the initial decision of an Administrative Law Judge in a Commission proceeding. The Commission is not ready at this time to issue a rule providing for Commission components to participate in arbitration. Rather, the Commission encourages its components to engage in mediation or any other of the various forms of assisted negotiation.

The Commission sees no reason why discovery could not be held or sworn testimony be taken within an arbitration proceeding. Proposed § 502.407 would provide authority to the arbitrator to regulate the course of arbitral hearings and administer oaths and affirmations. The intent behind an arbitration proceeding is to resolve an issue in controversy in a more expeditious and less costly manner than would litigation generally. Extensive discovery therefore is discouraged in an arbitration proceeding, even though some discovery may be necessary. Prior to an arbitration, the parties may agree to a discovery process, including limitations therein. To the extent the discovery process is not controlled by an agreement to arbitrate, the Commission anticipates that the arbitrator may make rulings with respect to discovery under his authority to regulate the course of the hearing. Also, the arbitrator would be empowered to require testimony under oath.

Mr. Measter states that he is a member of SMA, the members of which he states have expertise in arbitration and mediation. He states that he believes the proposed rule is workable and within the generally accepted practice in the ADR field. He does not believe that members of the Commission's staff should serve as neutrals. He posits that SMA could provide neutrals and even administer the program, even though he also thinks that Commission staff members could administer the process.

Under the ADRA, 5 U.S.C. 573, and proposed § 502.404(a), a neutral may be a Federal Government officer or employee or any other individual acceptable to the parties, as long as the neutral is without official, financial, or personal conflict of interest or any such conflict of interest has been fully disclosed in writing and is acceptable to all parties. Moreover, the proposed rule provides for appointment of neutrals acceptable to the parties. The parties may select a neutral that is not a Commission employee or official. In such event, under § 502.404(d) the fees and expenses would be borne by the parties as they agree. Accordingly, the proposed rule would not prevent parties from using ADR services of organizations like SMA. Indeed, the Commission encourages parties to seek ADR services to resolve disputes prior to bringing them to the Commission. When such a dispute is before the Commission or its staff, however, the Commission would make personnel available for ADR services should the parties so desire.

The rule contains no additional information collection or record keeping requirements and need not be submitted to OMB for approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , the Chairman of the Federal Maritime Commission has certified to the Chief Counsel for Advocacy, Small Business Administration, that the rule will not have a significant impact on a substantial number of small entities. In its Notice of Proposed Rulemaking, the Commission stated its intention to certify this rulemaking since the rule creates new service options that are voluntary to all ocean shipping entities, including small businesses. The rule benefits small entities by expediting the complaint process, reducing costs, and increasing the Commission's assistance. As no comments refuted this determination, the certification remains unchanged. This regulatory action is not a “major rule” under 5 U.S.C. 804(2).

This is a summary of the Commission's Fourth Report and Order in CC Docket No. 98-147, released August 8, 2001. The complete text of this Order is available for inspection and copying during regular business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC. It is also available on the Commission's website at http://www.fcc.gov.

1. The Commission concludes that equipment is “necessary for interconnection or access to unbundled network elements” within the meaning of section 251(c)(6) of the Communications Act of 1934, as amended (Communications Act or Act), and thus may be collocated without an incumbent local exchange carrier's (incumbent LEC's) approval if, an inability to deploy that equipment would, as a practical, economic, or operational matter, preclude the requesting carrier from obtaining interconnection or access to unbundled network elements as contemplated in sections 251(c)(2) and 251(c)(3) of the Act. The Commission also concludes that section 251(c)(6) allows a requesting carrier to collocate any equipment necessary for obtaining equal interconnection or nondiscriminatory access to unbundled network elements as contemplated in sections 251(c)(2) and 251(c)(3). Applying the statutory standard set forth in section 251(c)(2), the Commission concludes that section 251(c)(6) allows the interconnecting carrier to collocate any equipment necessary for interconnecting with the incumbent LEC at a level equal in quality to that which the incumbent obtains within its own network or the incumbent provides to any affiliate, subsidiary, or other party. Similarly, applying the statutory standard set forth in section 251(c)(3), the Commission further concludes that section 251(c)(6) allows a requesting carrier to collocate any equipment necessary for obtaining “nondiscriminatory access” to an unbundled network element, including any of its features, functions, or capabilities.

2. The Commission finds that multifunction equipment meets the “necessary” standard only if the primary purpose and function of the equipment, as the requesting carrier seeks to deploy it, are to provide the requesting carrier with “equal in quality” interconnection or “nondiscriminatory access” to one or more unbundled network elements. The Commission also finds that, for purposes of determining whether a piece of equipment is to be used primarily to obtain “equal in quality” interconnection or “nondiscriminatory access” to one or more unbundled network elements, there must be a logical nexus between the additional functions the equipment would perform and the telecommunication services the requesting carrier seeks to provide to its customers by means of the interconnection or unbundled network element. The Commission further finds that any function that would not meet its equipment standard as a stand-alone function must not cause the equipment to significantly increase the burden on the incumbent's property. The Commission concludes, in addition, that switching and routing equipment typically meets its equipment standard because an inability to deploy that equipment would, as a practical, economic, or operational matter, preclude a requesting carrier from obtaining nondiscriminatory access to an unbundled network element, the local loop. As a general matter, an incumbent LEC therefore must allow requesting carriers to collocate switching and routing equipment. An incumbent LEC, however, generally need not allow collocation of traditional circuit switches, which are very large pieces of equipment compared to newer, more advanced switching and routing equipment. The Commission finds, in light of the practical, economic, and operational availability of the relatively small switches and routers, that traditional circuit switches generally do not meet its equipment standard.

3. The Commission eliminates its previous requirement, adopted pursuant to section 251(c)(6), that an incumbent LEC allow competitive LECs to construct and maintain cross-connects outside of their immediate physical collocation space at the incumbent's premises. The Commission finds, however, that sections 201 and 251(c)(6) of the Communications Act authorize it to require that an incumbent LEC provision cross-connects between collocated carriers, and the Commission requires that an incumbent LEC provide such cross-connects upon reasonable request. The Commission finds that, in making available a cross-connect offering, an incumbent LEC must provide the appropriate cross-connect as requested by the collocated competitive local exchange carriers (competitive LECs). The Commission notes that the “appropriate” cross-connect facility may constitute a “lit” service or a dark fiber service depending upon the requirements of the two collocated competitors. Where a collocator is requesting a cross-connect pursuant to the Commission's action under section 201, it shall provide a certification to the incumbent that more than ten percent of the amount of traffic to be transmitted through the cross-connect will be interstate. The Commission specifies that the incumbent LEC cannot refuse to accept the certification, but instead must provision the cross-connect promptly.

4. The Commission eliminates rules that gave carriers requesting physical collocation the option of picking their physical collocation space from among the unused space in an incumbent LEC's premises, that precluded an incumbent LEC from restricting physical collocation to space separated from space housing the incumbent's equipment, and that precluded an incumbent from requiring the construction and use of a separate entrance to access physical collocation space. In their place, the Commission adopts new rules that establish principles to ensure that the incumbent LEC's policies and practices in assigning and configuring physical collocation space are consistent with the statutory requirement that the incumbent provide for physical collocation “on rates, terms, and conditions that are just, reasonable, and nondiscriminatory.” The Commission also adopts presumptions that will apply in evaluating an incumbent LEC's policies and practices in these areas.

5. As required by the Regulatory Flexibility Act (RFA), a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Order on Reconsideration and Second Further Notice of Proposed Rulemaking (Second Further NPRM) in CC Docket 98-147, 65 FR 54527, September 8, 2000. The Commission sought written public comment on the proposals in the Second Further NPRM , including comment on the Supplemental IRFA. We received comments from The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) specifically directed toward the Supplemental IRFA. These comments are discussed below. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

6. This Fourth Report and Order (Fourth Order) continues the Commission's efforts to facilitate the development of competition in telecommunications services. In the Advanced Services First Report and Order , 64 F.R. 23229, April 30, 1999, the Commission strengthened its collocation rules to reduce the costs and delays faced by carriers that seek to collocate equipment at the premises of incumbent local exchange carriers (incumbent LECs). In GTE v. FCC , the D.C. Circuit vacated several of those rules and remanded the case to the Commission. In this Fourth Order, we address the remanded issues and take additional steps toward implementing Congress' goals in enacting section 251(c)(6) of the Communications Act. Specifically, we adopt rule amendments that more appropriately implement the balance reflected in the Communications Act, between promoting competition and technological innovation, and establishing limits on the scope of the intrusion allowed into the incumbent LEC's property rights to avoid unnecessary takings of such property. Nonetheless, through these amended rules, we reaffirm our commitment to ensuring that facilities-based competitors, including those that are small entities, have the incentive and ability to invest in alternative infrastructure and innovative technologies, while, at the same time, ensuring that incumbents retain similar incentives and capabilities.

7. In the Supplemental IRFA, we stated that any rule changes would impose minimum burdens on small entities, including both telecommunications carriers that request collocation and the incumbent LECs that, under section 251(c)(6) of the Communications Act, must provide collocation to requesting carriers. We also solicited comments on alternatives to the proposed rules that would minimize the impact that any changes to our rules might have on small entities. In their comments, OPASTCO states that the Supplemental IRFA did not provide “the flexibility necessary to accommodate the needs of small [incumbent LECs] and their customers.” OPASTCO also states that the Supplemental IRFA does not specify the specific requirements that might be imposed on small incumbent LECs or the extent to which those requirements might burden small incumbent LECs. Finally, OPASTCO states that the Supplemental IRFA failed “to describe the ‘significant alternatives’ for small [incumbent LECs] that [were] presumptively under consideration” in this rulemaking. As noted above, OPASTCO filed comments specifically directed to the Supplemental IRFA and to issues that were raised in the NPRM but not addressed in this Fourth Order which is limited to issues that the D.C. Circuit remanded. In making the determinations reflected in the Fourth Order, we have considered the impact of our actions on small entities.

8. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA). In this Fourth Order, we take a number of steps that may affect small entities that either provide or obtain collocation pursuant to section 251(c)(6) of the Communications Act. The requirements we adopt will require small incumbent LECs to change their collocation practices. As Congress contemplated in enacting section 251(c)(6), however, our collocation requirements benefit small competitive local exchange carriers (competitive LECs) in their efforts to compete against incumbent LECs in the provision of telecommunications services, including advanced services. We believe that, on balance, the benefits to small competitive LECs of our actions in this Fourth Order far outweigh any burdens these place on small incumbent LECs.

9. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, which encompasses data compiled from FCC Form 499-A Telecommunications Reporting Worksheets. According to data in the most recent report, there are 4,822 service providers. These carriers include, inter alia, providers of telephone exchange service, wireline carriers and service providers, LECs, interexchange carriers, competitive access providers, and resellers.

10. We have included small incumbent LECs in this present RFA analysis. A “small business” under the RFA is one that, inter alia , meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

11. Total Number of Telephone Companies Affected. The United States Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, covered specialized mobile radio providers, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a personal communications service (PCS) provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It is reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the proposed rules, herein adopted.

12. Wireline Carriers and Service Providers. The SBA has developed a definition of small entities for telephone communications companies other than radiotelephone (wireless) companies. The Census Bureau reports that there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to the SBA's definition, a small business telephone company other than a radiotelephone (wireless) company is one employing no more than 1,500 persons. All but 26 of the 2,321 non-radiotelephone (wireless) companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone (wireless) companies that might qualify as small entities or small incumbent LECs. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that fewer than 2,295 small telephone communications companies other than radiotelephone (wireless) companies are small entities or small incumbent LECs that may be affected by the proposed rules, herein adopted.

13. Local Exchange Carriers. Neither the Commission nor the SBA has developed a definition for small providers of local exchange service (LECs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent data, there are 1,395 incumbent and other LECs. The Commission does not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that fewer than 1,395 providers of local exchange service are small entities or small incumbent LECs that may be affected by the proposed rules, herein adopted.

14. Interexchange Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent data, there are 204 carriers engaged in the provision of interexchange services. The Commission does not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are less than 204 small entity IXCs that may be affected by the proposed rules, herein adopted.

15. Competitive Access Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive access services providers (CAPs). The closest applicable definition under the SBA rules is for telephone communications companies other than except radiotelephone (wireless) companies. According to the most recent data, there are 349 CAPs and competitive LECs engaged in the provision of competitive local exchange services. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of CAPs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are less than 349 small entity CAPs providing competitive local exchange services that may be affected by the proposed rules, herein adopted.

16. Resellers (including debit card providers). Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to resellers. The closest applicable SBA definition for a reseller is a telephone communications company other than radiotelephone (wireless) companies. According to the most recent data, there are 541 local and toll resellers engaged in the resale of telephone service. The Commission does not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of resellers that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are fewer than 541 small local and toll resellers that may be affected by the proposed rules, herein adopted.

17. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as very small business entities, and one that qualified as a small business entity. The Commission concludes that the number of geographic area WS licenses affected includes these eight entities.

18. The Fourth Order imposes nominal increases in projected reporting, recordkeeping, and other compliance requirements. Both of these changes affect small and large companies equally. First, the Fourth Order requires a competitive LEC that is requesting incumbent-LEC provisioned cross-connects pursuant to section 201 of the Act to provide a short certification that the amount of interstate traffic to be transmitted over the cross-connect constitutes more than ten percent of all traffic transmitted over that cross-connect. This certification requirement stems from jurisdictional considerations. Thus, it is not possible to exempt small entities from compliance with the certification requirement.

19. In the Fourth Order, the Commission requires that an incumbent LEC must allow a requesting carrier to submit physical collocation space preferences prior to assigning that carrier space. This will enable the requesting carrier to request the space that best fits its operational needs. We also amend our existing space report rule to require that, upon request, an incumbent LEC must submit to the requesting carrier a report describing in detail the space that is available for collocation in a particular incumbent LEC premises. Thus, the new rule requires more detailed information within a report that already must be provided. A professional would likely prepare the additional information in a limited period of time. To give the rule any meaning, this report must be generated by small and large entities alike. Otherwise, carriers requesting collocation at a small incumbent LEC's facility would not have the all of the information available to make an educated space preference request.

20. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

21. In this Fourth Order, the Commission adopts collocation rules in implementation of section 251(c)(6) of the Communications Act. These rules respond to the D.C. Circuit's decision in GTE v. FCC , remanding certain rules the Commission had adopted to implement that provision. Our actions will affect both telecommunications carriers that request collocation and the incumbent LECs that, under section 251(c)(6), must provide collocation. As indicated above, both groups of carriers include entities that, for purposes of this FRFA, are classified as small entities. Neither section 251(c)(6) nor the D.C. Circuit decision permits the Commission to exempt any incumbent LECs, including those that are small entities, from their collocation obligations. Indeed, section 10(d) of the Communications Act precludes the Commission from forbearing from the application of section 251(c)(6) to any entity prior to that section's full implementation, an event that has not yet occurred.

22. In this Fourth Order, the Commission takes a number of steps that may affect small entities that either provide or obtain collocation pursuant to section 251(c)(6) of the Communications Act. The requirements the Commission adopts will require incumbent LECs to change their collocation practices. As Congress contemplated in enacting section 251(c)(6), our collocation requirements benefit small competitive LECs in their efforts to compete against incumbent LECs, both large and small, in the provision of telecommunications services, including advanced services. The Commission believes that, on balance, the benefits to small competitive LECs of our actions in this Fourth Order far outweigh any burdens the Fourth Order places on small incumbent LECs.

23. As set forth more fully below, the Commission believes that our actions in this Fourth Order are consistent with the RFA. Specifically, as OPASTCO urges, the requirements the Commission adopts provide substantial flexibility to incumbent LECs, including small incumbent LECs, in implementing section 251(c)(6). See OPASTCO Comments at 6; para. 3, supra. OPASTCO does not address directly any of the issues remanded by the D.C. Circuit and thus does not raise any specific alternatives we might consider in this Fourth Order. The Commission's requirements, however, stop short of allowing any incumbent LEC to act inconsistent with that statutory provision. Any such action would be inconsistent with the requirements of section 251(c)(6) and would upset the balance reflected in the statute. Such action also would substantially burden competitive LECs, including those that are small entities, in their efforts to compete against incumbent LECs.

24. The record makes clear that, absent the adoption of rules addressing the matters remanded by the D.C. Circuit, incumbent LECs will impede requesting carriers' collocation efforts.

25. The Commission's actions in this Fourth Order should benefit requesting carriers, many of which may be small entities, by reducing barriers they encounter in seeking to compete effectively in the provision of advanced services and other telecommunications services. The Commission's actions seek to balance the property interests of the incumbent LECs, including small incumbent LECs, with the public interest in promoting innovation and competition. It is concluded that rules that are more restrictive or less restrictive would not strike the appropriate balance.

26. In this Fourth Order, the Commission adopts standards that determine which competitive LECs, including small carriers, may collocate equipment at incumbent LEC premises pursuant to section 251(c)(6). These standards provide that equipment is “ necessary for interconnection or access to unbundled network elements” within the meaning of section 251(c)(6) if an inability to deploy that equipment would, as a practical, economic, or operational matter, preclude the requesting carrier from obtaining interconnection or access to unbundled network elements as contemplated in sections 251(c)(2) and 251(c)(3). The Commission also finds that multifunction equipment meets the “necessary” standard only if the primary purpose and function of the equipment, as the requesting carrier seeks to deploy it, would be practically, economically, or operationally necessary for that carrier to obtain “equal in quality” interconnection or “nondiscriminatory access” to one or more unbundled network elements. The Commission rejects incumbent LEC and competitive LEC requests for alternative equipment standards because we believe such standards would be inconsistent with section 251(c)(6). The Commission also finds that standards more favorable to the incumbent LECs would thwart competition without significantly improving the interests of the incumbent LECs, while standards more favorable to competitive LECs would not properly take into consideration the property interests of the incumbent LECs. Therefore, the Commission selects the alternative that best balances the impact on each party, including small entities, and maximizes benefits.

27. The Commission also concludes that switching and routing equipment generally meets our equipment standard because an inability to deploy that equipment would, as a practical, economic, and operational matter, preclude a requesting carrier from accessing all the features, functions, and capabilities of unbundled local loops. An incumbent LEC therefore generally must allow requesting carriers to collocate the relatively small switching and routing equipment that technological advances have enabled manufacturers to develop. An incumbent LEC, however, generally need not allow collocation of traditional circuit switches, which are very large pieces of equipment. The Commission finds, in light of the practical, economic, and operational availability of the relatively small switches and routers and the materially lesser burden collocation of these switches and routers imposes on an incumbent's property interests, that traditional circuit switches generally do not meet our equipment standard. The Commission believes that this approach toward switching and routing equipment furthers the purposes behind the RFA, because it allows small competitive LECs flexibility in configuring their networks while precluding the collocation of switching and routing equipment that would infringe small incumbent LECs' property interests. It is noted that any alternative that might allow a small incumbent LEC to generally preclude the collocation of relatively small switches and routers within its premises would violate the statutory mandate that incumbent LECs, both large and small, provide for the collocation of “necessary” equipment.

28. In addition, in this Fourth Order, we eliminate the requirement that, pursuant to section 251(c)(6), an incumbent LEC allow competitive LECs to construct and maintain cross-connects outside of their immediate physical collocation space at the incumbent's premises. The Commission considered maintaining this requirement, but that alternative would be inconsistent with the Communications Act and would not properly take into consideration the property interests of the incumbent LECs. The elimination of this requirement gives small incumbent LECs flexibility that was not available under the Commission's prior collocation rules.

29. The Commission finds that sections 201 and 251 of the Communications Act provide statutory authority to require an incumbent LEC to provision cross-connects between collocated carriers, and we require that an incumbent LEC provide such cross-connects upon reasonable request. The Commission considered not requiring incumbent LECs to provision cross-connects between collocated carriers, but that alternative would allow incumbent LECs to provide collocation to competitive LECs in an unjust, unreasonable, and discriminatory manner. It is noted that all incumbent LECs, including those that are small carriers, cross-connect their own equipment within their premises. Indeed, those premises are, by design, places where a carrier can cross-connect equipment. The benefits to competition from requiring that a small incumbent LEC provision cross-connects between collocators within its premises far outweigh any additional burden such a requirement may impose on that carrier. In addition, allowing a small incumbent LEC to refrain from provisioning cross-connects between collocated carriers would allow the incumbent to impose unreasonable and discriminatory terms and conditions on collocators, in violation of the Communications Act.

30. In this Fourth Order, the Commission eliminates the requirement that incumbent LECs allow the requesting carrier to select its physical collocation space from among the unused space in the incumbent's premises as well as requirements constraining how incumbents LEC may configure physical collocation space. The Commission now allows incumbent LECs, in certain circumstances, to restrict physical collocation to space separated from space housing the incumbent's equipment and to require the construction and use of a separate entrance to access physical collocation space. The Commission rejects the alternative of retaining the prior rules, because they failed to properly balance the congressional goal of promoting competition against the need to protect an incumbent LEC's property interests against unwarranted intrusion. The elimination of these prior rules gives incumbent LECs, including small entities, flexibility that was not previously available.

31. The Commission recognizes, however, that an incumbent LEC has powerful incentives that, left unchecked, may influence it to allocate space in a manner inconsistent with its statutory duty to provide for physical collocation “on rates, terms, and conditions that are just, reasonable, and nondiscriminatory.” Accordingly, the Commission establishes specific principles that each incumbent LEC, including those that are small carriers, must follow in assigning physical collocation space. These rules are designed to ensure that incumbent LECs, both large and small, act as neutral property owners and managers, rather than as direct competitors of the carriers requesting collocation, in assigning physical collocation space to requesting carriers. Alternatives that would give a small incumbent LEC more flexibility in assigning space might enable it to act unreasonably and discriminatorily in violation of section 251(c)(6). Those alternatives also would burden requesting carriers, including those that are small carriers, by increasing the costs they incur in competing against incumbent LECs. Therefore, for both statutory and public policy reasons, the Commission does not adopt a different standard for incumbent LECs that are small entities.

32. The Commission also rejects the alternative of allowing incumbent LECs, including those that are small entities, to restrict physical collocation to space separated from space housing the incumbent's equipment and to require the construction and use of a separate entrance to access physical collocation space in all instances, because we find that such separation measures would be unreasonable and discriminatory in certain circumstances. The Commission concludes, for example, that an incumbent LEC may require such separation measures only where legitimate security concerns, or operational constraints unrelated to the incumbent's or any of its affiliates' or subsidiaries' competitive concerns, warrant them. This is consistent with the D.C. Circuit's recognition that alternatives other than separation are sufficient to address incumbent LECs' security concerns. To the extent small incumbent LECs encounter security concerns or operational constraints that differ from those incumbent LECs encounter, our rules permit small incumbent LECs to take those differences into account in their space assignment and configuration policies and practices.

33. The Commission will send a copy of the Fourth Order, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA. In addition, the Commission will send a copy of the Fourth Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Fourth Order and the FRFA (or summaries thereof) will also be published in the Federal Register .

34. Pursuant to sections 1-4, 201, 202, 251-254, 256, 271, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201, 202, 251-54, 256, 271, and 303(r), that this Fourth Report and Order is adopted.

35. Pursuant to sections 1-4, 201, 202, 251-54, 256, 271, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201, 202, 251-54, 256, 271, and 303(r), that Part 51 of the Commission's rules, 47 CFR part 51, is amended , as set forth in Rule Changes, and that those rule amendments shall become effective thirty days after publication of the text or summary thereof in the Federal Register , unless the FCC publishes a document in the Federal Register to delay or withdraw them.

36. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Fourth Report and Order , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

37. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose new or modified reporting and recordkeeping requirements or burdens on the public. Implementation of these new or modified reporting and recordkeeping requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the Paperwork Reduction Act of 1995, and will go into effect 30 days after publication in the Federal Register , unless the FCC publishes a document in the Federal Register to delay or withdraw them.

The final regulations that are the subject of these corrections established operator personnel qualification requirements for gas and hazardous liquid pipeline operators.

As published, the final regulations omitted titles for the new subparts to the pipeline safety regulations. Therefore, this document amends the regulations to add the title, “Qualification of Pipeline Personnel”, to subpart N of 49 CFR part 192 and to subpart G of 49 CFR part 195.

In addition, the final regulations contained incorrect numbering for the evaluation methods in § 192.803(b) and § 195.503(b). This document corrects the numbering to clarify that observation of performance on the job, job training, or simulations are all acceptable methods of observation, which is one of the means of individual evaluation allowed by the rule.

Evaluation means a process, established and documented by the operator, to determine an individual's ability to perform a covered task by any of the following:

(a) Written examination;

(b) Oral examination;

(c) Work performance history review;

(d) Observation during:

(1) Performance on the job,

(2) On the job training, or

(3) Simulations;

(e) Other forms of assessment.

NMFS manages fishing for groundfish by U.S. vessels in the exclusive economic zone of the Gulf of Alaska and the Bering Sea and Aleutian Islands Management Area under the Fishery Management Plan for Groundfish of the Gulf of Alaska and the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMPs). The Council prepared the FMPs under authority of the Magnuson-Stevens Act. Regulations implementing the FMPs at 50 CFR part 679 and subpart H of 50 CFR part 600 govern fishing by U.S. vessels. Recordkeeping and reporting requirements appear at 50 CFR 679.5.

This final rule implements the following changes to the recordkeeping and reporting requirements: (1) In § 679.2, add a definition of COAR; (2) in § 679.5, add a paragraph (p) that establishes requirements on completing and submitting the COAR; (3) revise Table 14—Ports of landing, Table 15—Gear Codes, descriptions, and use; (4) add Table 16—Area Codes and descriptions for use with ADF&G COAR, Table 17—COAR Process Codes, and Table 18—COAR Buying and Production Forms.

This action results in a substantive regulatory revision, namely, the addition of a requirement that catcher/processors and motherships submit an annual COAR detailing exvessel and first wholesale value data for fish and shellfish products. This action is necessary to gather information on exvessel and first wholesale values for state-wide finfish and shellfish products from catcher/processors and motherships at sea. These data together with the information already gathered from shoreside processors and stationary floating processors will provide a means to compare value information (in dollars) of different types of species and products from all processors of fish harvested from Alaska State and Federal waters within a year and comparisons of several years through consistent yearly collection of information. The additional requirement will:

(1) Allow NMFS staff to obtain for all processing sectors equivalent annual product value information and a consistent time series of information; in other words, the added data will provide a means to compare value information (in dollars) of different types of species and products from all processors of fish harvested from Alaska State and Federal waters within a year and comparisons of several years through a consistent yearly collection of information.

(2) Provide an enhanced socioeconomic database that NMFS will use to measure economic and socioeconomic impacts more accurately and to prepare economic analyses of proposed or existing management measures in compliance with the mandates of Executive Order (E.O.) 12866, the Magnuson-Stevens Act, including national standards 2, 4, 7 and 8, the American Fisheries Act (to monitor and report to Congress on the effects and efficacy of the new groundfish management programs), and the Regulatory Flexibility Act.

(3) Provide detailed (and consistent) data on production, prices, and product forms that NMFS will use to respond to requests for economic information from Federal and state management agencies, the fishing industry, and the general public.

(4) Provide a database that NMFS will use in the annual NMFS Stock Assessment and Fishery Evaluation (SAFE) documents for the groundfish fisheries of the Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA), in annual Federal publications on the value of U.S. commercial fisheries (e.g., Fisheries of the United States), and in periodic reports to economists that describe the fisheries and that serve as reference documents to management agencies, the industry, and others.

Some negative impacts could be encountered by some processors who would need to restructure their computer accounting systems to allow for the State of Alaska area codes that are distinct to the COAR. Otherwise, the codes are the same as those used on ADF&G fish tickets and in NMFS’ recordkeeping and reporting.

NMFS published a proposed rule to implement these revisions in the Federal Register on December 14, 2000 (65 FR 78131). The preamble to the proposed rule contains a full description of the revisions and their justification, which is not repeated here. NMFS invited public comment on the changes contained in this action through January 16, 2001.

NMFS received one comment on the proposed rule.

Comment . The comment supported the proposed COAR requirement, but cautioned that the methodology for calculating the data points (e.g., standardizing point of first wholesale pricing, shipping factors) needed to be the same across processing sectors of the fisheries. The commentor was concerned that the data computation point(s) are vague and that care should be taken that the data collected under this final rule are comparable to those already collected by the State of Alaska. The commentor added that the terms “mothership” and “catcher/processor” need to be clearly defined.

Response . The State’s existing data collection system will be used by NMFS for both the current shoreside collection and the new at-sea collection. The COAR form will be completed and submitted to ADF&G who will enter the data in the database. For the Federal system, NMFS has precisely defined “mothership” and “catcher/processor” for purposes of recordkeeping and reporting, and under these definitions the processors are required to submit the COAR. Accordingly, NMFS’ COAR is analogous with the State of Alaska COAR.

Although some editorial changes were made to the regulatory text in this final rule, no substantive changes were made from the proposed regulatory text. An explanation of the editorial changes follows:

Table 14 (a). The title of Table 14 (a) is changed to read, “Port of Landing Codes, including CDQ and IFQ Primary Ports—(a) United States, Alaska.” The port code for Unalaska (180) is removed, and code 119 is renamed to read Dutch Harbor/Unalaska. Several port codes are added: XIP (124) for Excursion Inlet; FSP for False Pass, KOD (146) for Kodiak; (162) Portage Bay (Petersburg); and (182) West Anchor Cove. The port, “Other/Unknown” is revised to read “Other” and UNK (499).

Table 14 (b). The title of Table 14 (b) is changed to read, “Port of Landing Codes, including CDQ and IFQ Primary Ports—(b) United States, non-Alaska.” A footnote (1) is added to explain how to record a location not assigned a code.

Table 14 (c). The title of Table 14 (c) is changed to read, “Port of Landing Codes, including CDQ and IFQ Primary Ports—(c) Canada.” A footnote (1) is added to explain how to record a location not assigned a code.

The Administrator, Alaska Region, NMFS (Regional Administrator), determined that this final rule is necessary for the conservation and management of the groundfish fisheries off Alaska.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB control number.

This final rule contains collection-of-information requirements subject to the PRA that have been approved by OMB under control no. 0648-0428. The estimated response time to complete a COAR is estimated to range from 0.5 hr to 16 hr, an average of 8 hr per year.

This final rule was developed through a joint effort between the State of Alaska ADF&G and the NMFS Alaska Region. This cooperative endeavor will result in a combined database consisting of exvessel and first wholesale value information (in dollars) as well as production information from all processors of fish species and products harvested from State of Alaska waters and Federal waters off Alaska. This database will be updated annually and will allow historical economic comparisons through a consistent collection of information.

In the late 1980's, NMFS and the State of Alaska ADF&G began to jointly collect COAR data for the shoreside sector. Prior to that, ADF&G collected the COAR data and NMFS collected data for its own survey. The groundfish COAR was collected for 4 years cooperatively by NMFS and ADF&G. The two agencies jointly developed the procedure and proposed Federal regulations for gathering information from motherships and catcher/processors to add the information already collected from shoreside processors and stationary floating processors by the State of Alaska. The procedure is based on using the State of Alaska’s 25-year old COAR data collection to the greatest extent to accomplish NMFS’ statutory goal of information collection while enhancing the State of Alaska’s database and goals.