On February 2, 2001, the FAA issued AD 2000-25-54, Amendment 39-12106 (66 FR 10185, February 14, 2001), to require visually checking and subsequently inspecting each blade, P/N 109-8132-01-109, for a crack at specified intervals. That AD also requires replacing any cracked blade with an airworthy blade. That action was prompted by five reports of cracked blades. That condition, if not corrected, could result in failure of a blade and subsequent loss of control of the helicopter.

Since the issuance of that AD, the Ente Nazionale per l'Aviazione Civile (ENAC), the airworthiness authority for Italy, notified the FAA that an unsafe condition may exist on Agusta Model A109E helicopters with blades, P/N 109-8132-01-107, that are not affected by AD 2000-25-54. The ENAC advises inspecting certain additional blades for a crack.

Agusta has issued Alert Bollettino Tecnico No. 109EP-14, Revision A, dated March 19, 2001 (ABT), which specifies certain inspections for a crack in blades, part number (P/N) 109-8132-01-109 and -107. Agusta included blade, P/N 109-8132-01-107, in its technical bulletin because the blade is manufactured using the same process as used for P/N 109-8132-01-109. Cracks in blade, P/N 109-8132-01-109, were discovered during maintenance and by a pilot due to an increase of vibratory level, which did not affect the operation of the tail rotor. Agusta is investigating the reason for these cracks, and the instructions in this ABT are given as a precautionary measure. ENAC issued AD 2001-094, dated March 22, 2001, requiring compliance with the ABT.

This helicopter model is manufactured in Italy and is typed certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the ENAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the ENAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since we have identified an unsafe condition that is likely to exist or develop on other Agusta Model A109E helicopters of the same type design registered in the United States, this AD supersedes AD 2000-25-54. This AD contains the same requirements as AD 2000-25-54 but adds blade, P/N 109-8132-01-107, to the applicability. Therefore, the AD requires the following for each blade, P/N 109-8132-01-107, and -109:

• Before each start of the engines, visually check both sides of each blade for a crack.

• Within 10 hours time-in-service (TIS) and at specified intervals or before the next flight after any abnormal tail rotor vibration, inspect each blade for a crack using a 5-power or higher magnifying glass.

• Within 25 hours TIS and at specified intervals, dye-penetrant inspect each blade for a crack.

• Replace each cracked blade with an airworthy blade before further flight.

The actions must be accomplished in accordance with the ABT described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, the actions previously listed are required at frequent compliance intervals, and this AD must be issued immediately.

An owner/operator (pilot) may perform the visual check required by this AD and must enter compliance with paragraph (a) of this AD into the aircraft maintenance records in accordance with 14 CFR 43.11 and 91.417(a)(2)(v). This AD allows a pilot to perform this check because it involves only a visual check for a crack in the blade and can be performed equally well by a pilot or a mechanic.

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.

The FAA estimates that 29 helicopters will be affected by this AD, that it will take approximately 1/2 work hour to conduct the 10-hour interval inspection, 1 work hour to conduct the dye-penetrant inspection, and 1 work hour to replace each blade, and that the average labor rate is $60 per work hour. Consumable materials are expected to cost $35 per helicopter. Required parts will cost approximately $10,000 per helicopter if both blades are replaced. Assuming each helicopter flies 200 hours in 6 months, the 10-hour inspection is accomplished 20 times, and the dye-penetrant inspection is accomplished 8 times, and both blades are replaced once, the total cost impact of the AD on U.S. operators is estimated to be $325,815.

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available 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 mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-24-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.

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 McDonnell Douglas Model DC-10 and MD-10 series airplanes was published in the Federal Register on November 29, 2000 (65 FR 71074). That action proposed to require an inspection of the one phase remote control circuit breakers (RCCB) in the main avionics compartment and center accessory compartment to determine their part numbers and serial numbers, and replacement of RCCB's with certain RCCB's, 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.

Two commenters concur with the intent and requirements of the NPRM.

One commenter, an operator, requests that the compliance time for the “on-condition” replacement of the RCCB be revised from “prior to further flight” to “replacement before compliance date.” The commenter notes that, before the proposed inspection is performed, the extent of the problem is unknown, and it would be hard for the operators to procure sufficient RCCB's. The commenter concludes that such an extension of the compliance time would prevent possible grounding of airplanes.

The FAA does not concur that the compliance time for the “on-condition” replacement should be revised. We acknowledge the commenter's concern about the availability of replacement RCCB's; however, the manufacturer has advised us that adequate parts for the replacement of RCCB's are available. Therefore, no change in this regard is necessary to the final rule.

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

There are approximately 446 Model DC-10 and MD-10 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 312 airplanes of U.S. registry will be affected by this AD, that it will take approximately 6 work hours per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $112,320, or $360 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-100, -200, and -300 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on January 5, 2001 (66 FR 1057). That action proposed to require a one-time detailed visual inspection to detect damage of the ladder plates and access cover areas of the upper surface of the wings; repair, if necessary; and installation of new O-ring seals. That action also proposed to revise the inspection requirements of the original NPRM by correcting a reference to a repair manual.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted.

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

There are approximately 516 Model DHC-8-100, -200, and -300 series airplanes in the worldwide fleet. The FAA estimates that 235 Model DHC-8-100, -200, and -300 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 6 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $84,600, or $360 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 707 and 720 series airplanes was published in the Federal Register on June 5, 2001 (66 FR 30105). That action proposed to require a preventive modification of the front spar fitting on the outboard engine nacelle.

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

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

There are approximately 13 Model 707 and 720 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 3 airplanes of U.S. registry will be affected by this AD, that it will take approximately 64 work hours per airplane to accomplish the required modification, and that the average labor rate is $60 per work hour. Required parts will cost approximately $1,300 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $15,420, or $5,140 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 90-06-18 R1, amendment 39-6706 (55 FR 33650, August 17, 1990), which is applicable to certain Boeing Model 747 series airplanes, was published in the Federal Register on April 25, 2001 (66 FR 20763). The action proposed to continue to require inspection of the aft trunnion of the wing landing gear for cracks and corrosion, and corrective action, if necessary. The action also proposed to require new repetitive inspections for cracks or corrosion of the aft trunnion outer cylinders of the wing landing gear, follow-on actions, and repetitive overhaul of the wing landing gear. The new proposed actions would also apply to airplanes not included in the applicability of the existing AD.

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

One commenter states that paragraph (c) of the proposed rule does not give credit for new-production airplanes and asks that the FAA clarify requirements for such new airplanes.

We infer that the commenter is concerned about the compliance time for the actions required by paragraph (c) of this AD, and we concur that we need to revise the compliance time to accommodate new airplanes. As paragraph (c) is written in the proposed rule, new airplanes delivered after 180 days after the effective date of this AD may be grounded until the actions required by paragraph (c) of this AD are done. Therefore, we have revised the compliance time of paragraph (c) of this AD to 180 days since the airplane's date of manufacture, or 180 days after the effective date of this AD, whichever occurs later. We find that this compliance time will allow adequate time for new airplanes to continue to operate before complying with paragraph (c) of this AD without compromising safety.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change 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 1,132 Model 747 series airplanes of the affected design in the worldwide fleet.

In AD 90-06-18 R1, the FAA estimated that the actions in that AD would affect 163 airplanes of U.S. registry. The actions that are currently required by AD 90-06-18 R1 take approximately 45 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates the cost impact of the currently required actions on U.S. operators to be $440,100, or $2,700 per airplane, per inspection cycle.

The FAA estimates that this new AD will affect 233 airplanes of U.S. registry. The new inspections required by this AD will take approximately 8 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates the cost impact of these required inspections on U.S. operators to be $111,840, or $480 per airplane, per inspection cycle.

The new overhaul required by this AD action will take approximately 320 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates the cost impact of the required overhaul on U.S. operators to be $4,473,600, or $19,200 per airplane, per overhaul.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Raytheon Model DH.125, HS.125, BH.125, and BAe 125 (U-125 and C-29A) series airplanes, and Hawker 800, Hawker 800 (U-125A), Hawker 800XP, and Hawker 1000 airplanes was published in the Federal Register on June 5, 2001 (66 FR 30107). That action proposed to require an inspection to detect cracking or corrosion of the cylinder head lugs of the main landing gear (MLG) and follow-on/corrective actions.

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

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

There are approximately 1,000 airplanes of the affected design in the worldwide fleet. The FAA estimates that 650 airplanes of U.S. registry will be affected by this AD, that it will take approximately 20 work hours per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $780,000, or $1,200 per airplane.

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

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

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

The Civil Aviation Administration of Israel (CAAI), which is the airworthiness authority for Israel, notified the FAA that an unsafe condition may exist on certain Israel Aircraft Industries, Ltd., Model Astra SPX and 1125 Westwind Astra series airplanes. The CAAI advises that fatigue cracking has been found on drag braces with part numbers 25W272003-501 through 25W272003-507 inclusive installed on the nose landing gear. This condition, if not corrected, could result in failure of the nose landing gear.

Israel Aircraft Industries has issued Astra Alert Service Bulletin 1125-32A-095, dated December 4, 2000. The service bulletin describes procedures for one-time detailed visual and eddy current inspections for cracking of the upper radius of the drag brace on the nose landing gear, and replacement of the drag brace, if necessary. The area to be inspected is the fillet between the trunnion axis and the body of the drag brace. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAAI classified this service bulletin as mandatory and issued Israeli airworthiness directive 32-00-12-14, dated July 1, 2001, in order to assure the continued airworthiness of these airplanes in Israel.

The Israeli airworthiness directive notes that the drag brace on the nose landing gear is subject to repetitive detailed visual and eddy current inspections per Chapters 5 and 32 of the Astra Maintenance Manual, including Temporary Revision 32-7, dated November 28, 2000, or a later revision. Such inspections are intended to ensure that any cracking is detected in a timely manner.

Investigation of a nose landing gear overhaul facility has led to the conclusion that a procedural and inspection fault could result due to previous installation of a drag brace that could be cracked. To ensure that such drag braces were not installed, we are requiring an inspection of the drag brace within 25 flight hours after the effective date of this AD, unless accomplished within the last 250 flight hours before the effective date of this AD.

These airplane models are manufactured in Israel and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAAI has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAAI, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent failure of the nose landing gear. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

While the effectivity statement of the service bulletin includes only Model 1125 Astra series airplanes with serial numbers 004 through 039 inclusive, the foreign airworthiness directive states that any Model 1125 Astra and Astra SPX series airplane with a serial number higher than 039 on which the nose landing gear or the drag brace of the nose landing gear has been replaced must be checked to determine whether it is subject to this AD. Based on this recommendation in the foreign airworthiness directive and our examination of the findings of the CAAI, this AD requires inspection of all Model Astra SPX and 1125 Westwind Astra series airplanes with a drag brace having part numbers 25W272003-501 through 25W272003-507 inclusive installed on the nose landing gear.

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-261-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.

The FAA has received a report of a fire in a Boeing Model 767-300 series airplane during routine maintenance. As the maintenance crew attempted to apply external electrical power to the airplane, fire erupted in the forward electrical/electronics bay, below the P37 miscellaneous electrical equipment panel. The source of the fire was traced to chafing and subsequent arcing of power wires belonging to electrical power wire bundle W298, which is routed from the P32 R generator power panel to the P37 panel. A stringer and a web were severely damaged by the electrical arcing and had to be replaced. Some of the wires were severed, and the insulation blanket was burned. It was discovered that the routing of the bundle under the blanket violates wire bundle installation and routing requirements.

An investigation and inspection of other Model 767 series airplanes in that operator's fleet revealed similar findings at the same location, including chafed wires, loose or missing cable clamps, and other installation anomalies. The manufacturer has received no reports of similar incidents experienced by other operators of the affected airplanes.

Abrasion damage and installation discrepancies of the wire bundles located below the P37 panel could result in arcing to structure and consequent fire or loss of function of affected systems.

The FAA has reviewed and approved Boeing Alert Service Bulletins 767-24A0134 (for Model 767-200 and -300 series airplanes) and 767-24A0135 (for Model 767-400ER series airplanes), both dated March 15, 2001. The alert service bulletins describe procedures for:

• A one-time inspection to detect abrasion damage and installation discrepancies (including missing standoffs; missing, chafed, or loose cable clamps; chafed grommets; and wire bundles located beneath an insulation blanket) of the wire bundles W232, W298, and W2130; and the wiring and grommet at the S-29R intercostal penetration;

• Repair or replacement of any damaged wires or worn components;

• Installation of protective sleeving over the wire bundles; and

• Relocation of the wiring support standoff on the S-29R intercostal to provide more rigid support and adequate clearance between the bundle and the structural edges.

Accomplishment of the actions specified in the alert service bulletins is intended to adequately address the identified unsafe condition.

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 detect and correct abrasion damage and installation discrepancies of the wire bundles located below the P37 panel, which could result in arcing to structure and consequent fire or loss of function of affected systems. This AD requires accomplishment of the actions specified in the alert service bulletins described previously, except as discussed below.

The alert service bulletins recommend accomplishment of the actions “at the earliest opportunity when parts, manpower and facilities are available.” This AD requires compliance within 90 days. The FAA has determined that a 90-day compliance time represents the maximum interval of time allowable for affected airplanes to continue to safely operate before the required actions are accomplished. Maintenance schedules vary from operator to operator; therefore, the required compliance time will ensure that the actions will be accomplished during that maximum interval.

In addition, the alert service bulletins identify airplanes having certain serial numbers in the effectivity. However, this AD is applicable to all Boeing Model 767 series airplanes to ensure that appropriate actions are taken to address the identified unsafe condition for the fleet.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for 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 for 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 2001-NM-258-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.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on certain Airbus Model A300 B2 and B4 series airplanes, and certain Model A300 B4-600, B4-600R, and F4-600R (collectively called A300-600) series airplanes. The DGAC advises that an operator reported a 450-mm (18-inch) crack in the area of the attachment fitting of the main landing gear (MLG). The crack was found during a routine inspection in the area of the lower flange of gear rib 5 between the retraction jack attachment lug and the rear spar. The crack was visible at the edge of the lower flange between holes 48 and 49; it extended through the hole 47 spotfacing and up into the web at 45 degrees to the forward attachment flange on the rear spar. The cracking occurred significantly earlier than predicted by analysis, when the airplane had accumulated only 9,605 total flight cycles and 24,230 total flight hours. Fatigue cracking of the MLG attachment fittings, if not corrected, could result in reduced structural integrity of the airplane.

In February 2000, the FAA issued AD 2000-05-07, amendment 39-11616 (65 FR 12077, March 8, 2000). That AD currently requires repetitive inspections in the area where the 450-mm crack was found, and affects the same airplanes affected by this new AD. The compliance time for the initial inspection required by AD 2000-05-07 is 20,000 total flight cycles.

Airbus has issued All Operators Telexes (AOTs) A300-57A0239 (for Model A300 B2 and B4 series airplanes) and A300-600-57A6094 (for Model A300-600 series airplanes), both dated August 2, 2001. The AOTs describe procedures for a one-time detailed visual inspection to detect cracking in gear rib 5 (left and right) of the MLG attachment fittings at the lower flange and vertical web. The DGAC classified these AOTs as mandatory and issued French telegraphic airworthiness directive T2001-364(B), dated August 2, 2001, to ensure the continued airworthiness of these airplanes in France.

The area of inspection described in the AOTs is similar to that described in Airbus Service Bulletins A300-57A0234 (for Model A300 B2 and A300 B4 series airplanes) and A300-57A6087 (for Model A300-600 series airplanes). Those service bulletins are cited as the appropriate sources of service information for accomplishment of the inspections and repair required by AD 2000-05-07. The AOTs differ from the service bulletins in that the AOTs specify only a one-time inspection, shorten the recommended compliance time, and do not specify accomplishment of the additional, high frequency eddy current inspection. The AOTs refer to the service bulletins for repair instructions.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent fatigue cracking of the MLG attachment fittings, which could result in reduced structural integrity of the airplane. This AD requires accomplishment of the actions specified in the AOTs described previously, except as discussed below.

The AOTs refer to Airbus Service Bulletins A300-57A0234 and A300-57A6087 for repair instructions. Those service bulletins specify that the manufacturer may be contacted for disposition of certain repair conditions. However, this AD requires the repair of those conditions to be accomplished in accordance with a method approved by either the FAA, or the DGAC (or its delegated agent). In light of the type of repair required to address the identified unsafe condition, and in consonance with existing bilateral airworthiness agreements, the FAA has determined that, for this AD, a repair approved by either the FAA or the DGAC is acceptable for compliance with this AD.

This is considered to be interim action. The manufacturer is gathering data that will enable it to obtain better insight into the nature, cause, and extent of the cracking, and eventually to develop final action to address the unsafe condition. Once final action has been identified, the FAA may consider further rulemaking.

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 2001-NM-263-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.

On May 12, 1987, the FAA issued AD 86-06-08R1 (52 FR 24135, June 29, 1987) that amended AD 86-06-08 (51 FR 11300, April 2, 1986). Those AD's required an initial and repetitive fluorescent dye penetrant inspection of each grip. On August 31, 2000, the FAA issued Emergency AD 2000-18-51 that superseded AD's 86-06-08 and 86-06-08R1. AD 2000-18-51 requires initial and recurring liquid penetrant or eddy current inspections of the grip threads for a crack and, before further flight, replacing any cracked grip with an airworthy grip. That Emergency AD also establishes a retirement life of 1200 hours TIS for each grip. That Emergency AD was published in the Federal Register on November 15, 2000 (65 FR 68884) as a final rule, request for comments.

Airworthiness Directive 2000-18-51 was prompted by the results of an investigation of an August 1998 Canadian accident in which a grip failed on a BHTI Model 47G-2 helicopter due to a fatigue crack. An analysis of field service data revealed fatigue cracks in the majority of the grips inspected. The requirements of that AD are intended to prevent failure of a grip, loss of a main rotor blade, and subsequent loss of control of the helicopter.

Since issuing AD 2000-18-51, other cracked grips with less than 1200 hours TIS have been discovered including one grip with a 2-inch crack through the grip. Since then, the FAA has also determined that the liquid penetrant inspection is inadequate for finding smaller cracks in the grip threads. Additionally, two parts produced under a Parts Manufacturer Approval (PMA), P/Ns R74-120-252-11 and R74-120-135-5, were inadvertently omitted from the applicability of AD 2000-18-51. Based on these findings, the earlier accident investigation, a further analysis of field service data, the results of an operator survey conducted by a trade association, and several comments received as a result of the issuance of AD 2000-18-51 as a final rule, request for comments, the FAA issued a Notice of Proposed Rulemaking (NPRM) on March 23, 2001 (66 FR 17105, March 29, 2001) proposing to supersede AD 2000-18-51.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the numerous comments received from the 17 commenters. The comments and the FAA's responses are listed in the following table:

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously in the disposition of comments 14 and 15. Additionally, the FAA discovered an error in two of the P/Ns given in paragraph (d) of the NPRM; those P/Ns are corrected in this final rule. For better clarity, the FAA has also reorganized the compliance times for performing the eddy current inspections and has added an NDI testing facility to Appendix 2. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 1130 helicopters of U.S. registry will be affected by this AD, that it will take approximately 10 work hours per helicopter to accomplish the disassembly, inspection, and re-assembly of the grips from the helicopter, and that the average labor rate is $60 per work hour. Required parts, if a grip needs to be replaced, will cost approximately $4,000 per grip (there are two grips on each helicopter). Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $9,718,000, assuming one inspection per helicopter and replacement of both grips on each helicopter.

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 FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 98-24-02, amendment 39-10889 (63 FR 63402, November 13, 1998), which is applicable to certain McDonnell Douglas Model MD-11 series airplanes, was published in the Federal Register on June 11, 2001 (66 FR 31194). The action proposed to continue to require a one-time inspection to identify the part numbers of two dimmer controls for the overhead instrument panel light and circuit breaker lightplate located in the flight compartment. For airplanes on which a dimmer control having an incorrect part number is installed, the action also proposed to continue to require replacing the dimmer control with a new part; modifying and reinstalling the existing dimmer control; or reinstalling a dimmer control following modification of the part by the part manufacturer. The action also proposed to revise the term “serial numbers” in the applicability statement to “fuselage numbers.”

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

The commenter has no objection to the proposed revision.

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

There are approximately 174 Model MD-11 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 65 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $3,900, or $60 per airplane.

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

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

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

On June 18, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by modifying Class D and Class E airspace at Bellingham, WA, in order to clarify when two-way communications with the Bellingham ATCT is required and to provide adequate controlled airspace for IFR operations when the ATCT is closed (66 FR 32781). Interested parties were invited to participate in the rulemaking proceeding by submitting written comments on the proposal. A comment was received from the FAA, AVN-500, National Aeronautical Charting Office. A revision to the legal description, as written in the Notice for Proposed Rule Making (NPRM), was required to amend a small discrepancy in the airport coordinates. This is considered an insignificant modification to the airspace description as the corrections did not change the dimension of the proposed airspace action described in the NPRM.

This amendment to Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) modifies Class D and Class E airspace at Bellingham, WA, in order to clarify when two-way communications with the Bellingham ATCT is required and to provide adequate controlled airspace for IFR operations. This action modifies the Class D airspace area at Bellingham, WA, by amending the effective hours to coincide with the Bellingham ATCT hours of operation. This action modifies the Class E airspace extension at Bellingham International Airport when the Bellingham ATCT is closed. The FAA establishes Class D and Class E airspace where necessary to protect aircraft transitioning between the terminal and en route environments, and to provide local VFR sequencing by ATCT personnel. The effect of this proposal is designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under Instrument Flight Rules (IFR) and VFR at Bellingham International Airport and between the terminal and en route transition stages.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class D airspace areas designated for an airport, are published in Paragraph 5000, and Class E airspace areas designated as surface areas, are published in Paragraph 6004 of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designation listed in this document will be published subsequently in the Order.

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

On May 23, 2001, the FAA published a final rule that revised Class E airspace at Jackson Hole, WY (66 FR 28368). However, that action incorrectly described the city as Jackson Hole instead of the proper name of Jackson throughout the document. This action corrects the final rule by changing the city name from Jackson Hole, WY, to Jackson, WY.

On June 15, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising Class E airspace at Sidney, MT, in order to accommodate new RNAV SIAPs at Sidney-Richland Municipal Airport, Sidney, MT (66 FR 32593). This action provides Class E5 airspace at Sidney, MT, to meet current criteria standards associated with the SIAP. Interested parties were invited to participate in the rulemaking proceeding by submitting written comments on the proposal. A comment was received from the FAA, AVN-500, National Aeronautical Charting Office. A revision to the legal description, as written in the Notice for Proposed Rule Making (NPRM), was required to amend a small discrepancy in the airport coordinates. This is considered an insignificant modification to the airspace description as the corrections did not change the dimension of the proposed airspace action described in the NPRM.

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

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in Paragraph 6005, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

On April 10, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising Class E airspace at Lewistown, MT, in order to accommodate new RNAV SIAPs at Lewistown Municipal Airport, Lewistown, MT (66 FR 18578). This amendment provides Class E5 airspace at Lewistown, MT, to meet current criteria standards associated with the SIAP. Interested parties were invited to participate in the rulemaking proceeding by submitting written comments on the proposal. A revision to the legal description as written in the Notice for Proposed Rule Making (NPRM) was required to amend a small discrepancy in the proposed action in order to make the airspace easier to chart, and to correct an error in the magnetic declination for this location. This is considered an insignificant modification to the airspace description as the corrections did not change the dimension of the proposed airspace action described in the NPRM.

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

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in Paragraph 6005, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

On April 10, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising Class E airspace at Fort Bridger, WY, in order to accommodate new RNAV SIAPs at Fort Bridger, Airport, Fort Bridger, WY (66 FR 18577). This amendment provides Class E5 airspace at Fort Bridger, WY, to meet current criteria standards associated with the SIAP. Interested parties were invited to participate in the rulemaking proceeding by submitting written comments on the proposal. A revision to the legal description as written in the Notice for Proposed Rule Making (NPRM) was required for charting purpose to amend an error in the magnetic variation for this location. Therefore, the airspace was rotated 10° north in order to provide adequate airspace to contain the SIAPs identified in the proposed action. This is considered an insignificant modification to the airspace description as the dimension of the proposed airspace described in the NPRM did not change.

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

The area will depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in Paragraph 6005, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

On July 23, 2001, the FAA published a final rule that revised Class E airspace at Vernal, UT (66 FR 38149). However, that action was published beyond the date required to meet the effective date for charting purposes, therefore, this action establishes the new effective date as November 1, 2001. Additionally, typographical errors in the legal description are in need of correction to properly reflect the intent of the action. This action corrects the effective date of the airspace and corrects typographical errors in the legal description.

This amendment to 14 CFR part 71 revises the Class E airspace at Springhill, LA. The development of a NDB SIAP, at Springhill Airport, Springhill, LA, has made this rule necessary. This action is intended to provide adequate controlled airspace extending upward from 700 feet or more above the surface for IFR operations to Springhill Airport, Springhill, LA.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document will be published in the Federal Register. This document may withdraw the direct final rule in whole or in part. After considering the adverse or negative comment, we may publish another direct final rule or publish a notice of proposed rulemaking with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001ASW-14.” The postcard will be date stamped and returned to the commenter.

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

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

The Gainesville, FL, VORTAC was removed from service on February 24, 1998, due to flooding at the facility site in the Paynes Prairie Reserve, FL. Water entered the VORTAC building and covered the access road with 2 to 3 feet of water. The Paynes Prairie Reserve site is prone to flooding and, therefore, the FAA has determined that the best course of action is to move the facility permanently to a new location at the Gainesville Airport, FL, approximately 8 miles north of the former site. The relocation of the VORTAC requires that segments of the affected jet routes and VOR Federal airways be redescribed.

This action amends 14 CFR part 71 by revising the legal descriptions of two jet routes (J-55 and J-85) and four VOR Federal airways (V-157, V-441, V-537, and V-579), as a result of the relocation of the Gainesville, FL, VORTAC. The FAA is taking this action because the VORTAC facility has been moved to a new site approximately 8 miles north of its former location. The former site was deemed unsuitable due to recurring flooding which caused the VORTAC to be shutdown. In addition, this action changes the name of the “Gainesville VORTAC” to “Gators VORTAC.” This action makes minor amendments in the legal descriptions to align the affected jet route and VOR Federal airway segments with the new VORTAC site and reflect the new name of the facility. This action also restores a necessary navigational aid, and portions of the jet route and VOR Federal airway structures near Gainesville, FL, that have been unusable since February 1998.

The FAA obtained a new site, located at the Gainesville Regional Airport, to accommodate the move of VORTAC facility. Site preparation, construction of the building, and installation of the antenna and associated equipment are complete. In addition, required flight inspections have been performed. This rule is necessary to revise the descriptions of the affected VOR Federal airways and jet routes, as described above, to align them with the new geographical position of the Gators VORTAC.

The shutdown of the Gainesville VORTAC in 1998 resulted in the loss of an important National Airspace System navigational aid at a key, high volume juncture in north central Florida. As a result of this outage, a number of factors have impacted system efficiency and safety, including: increased air traffic controller workload due to the requirement to issue revised routings and air traffic control clearances; disruption of transition and arrival routes serving local terminal areas; and the loss of a heavily used navigational aid important to pilots flying under both instrument flight rules and visual flight rules (VFR). The VORTAC's proximity to numerous restricted areas, wherein activities hazardous to aviation are conducted, make it a particularly important aid to assist VFR pilots in avoiding those areas. Because this action is needed for safety and system efficiency reasons, the FAA finds that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest.

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

Jet routes and VOR Federal airways are published in paragraphs 2004 and 6010(a), respectively, of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The jet routes and VOR Federal airways listed in this document will be published subsequently in the Order.

The FAA is taking this action to correct the mileage listed in the description of V-611. VOR Federal airways are published in paragraph 6010 of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The corrected description for V-611 will be listed in this document and be published subsequently in the order.

This action amends Title 14 CFR part 71 (part 71) by amending the legal description of V-611, detailed in a final rule published in the Federal Register on December 12, 1997, due to an inadvertent error in the segment between Billings, MT, and Lewistown, MT. The FAA is taking this action to change the referenced “38 miles,” to read “71 miles.” This action corrects that error.

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

VOR Federal airways are published in paragraph 6010 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document will be published subsequently in the order.

The U.S. Air Force is realigning the missions at Moody AFB, GA. In conjunction with this change, the Air Force has redesignated host unit for the base as the 347th Rescue Wing. The 347th Rescue Wing serves as the sponsoring unit and scheduling activity for Restricted Areas R-3008A, R-3008B, R-3008C, and R-3008D.

This action amends 14 CFR part 73 by changing the name of the using agency for Restricted Areas R-3008A, R-3008B, R-3008C, and R-3008D, Grand Bay Weapons Range, GA, from “U.S. Air Force, 347th Fighter Wing, Moody AFB, GA,” to “U.S. Air Force, 347th Rescue Wing, Moody AFB, GA.” This administrative change will not alter the boundaries, altitudes, time of designation, or activities conducted within the restricted areas; therefore, I find that notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Section 73.30 of part 73 was republished in FAA Order 7400.8H, dated September 1, 2000.

This regulation is limited to an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. It has been determined that this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This action is a minor administrative change to amend the designated using agency of existing restricted areas. There are no changes to air traffic control procedures or routes as a result of this action. Therefore, this action is not subject to environmental assessments and procedures in accordance with FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts,” and the National Environmental Policy Act of 1969.

On May 14, 2001, the Commission published for comment proposed part 39 of its regulations to implement Section 5b of the Commodity Exchange Act (“Act”), as added by the Commodity Futures Modernization Act of 2000 (“CFMA”),1 governing derivatives clearing organizations.2 Section 5b(a) requires that contracts of sale of a commodity for future delivery, options on such contracts, and options on a commodity be cleared only by a derivatives clearing organization (“DCO”) registered with the Commission,3 unless the contracts or options are in: (i) commodities excluded under the Act, (ii) commodities exempted under the Act, or (iii) security futures products cleared by a securities clearing agency. With the exception of security futures products, which may be cleared by a securities clearing agency,4 contracts traded on a designated contract market, if cleared, must be cleared by a DCO.5 Agreements, contracts and transactions in excluded or exempted commodities that are traded on a derivatives transaction execution facility, if cleared, may be cleared through clearing organizations other than DCOs.6 However, a clearing organization that clears these contracts may voluntarily apply, pursuant to section 5b(b) of the Act, to register with the Commission as a DCO. A DCO may clear other contracts, agreements, or transactions, including, but not limited to, certain over-the-counter (“OTC”) derivative instruments referenced in section 5b(b) of the Act, and others, such as transactions in spot and forward contracts.

To be registered as a DCO, an applicant must demonstrate that it complies with fourteen core principles set forth in the CFMA. Part 39 stipulates the form and provides guidance for what should be included in applications for DCO registration, and sets forth procedures for processing such applications. It also addresses ongoing compliance by DCOs with the core principles and other provisions of the Act and regulations, the enforceability of contracts cleared on DCOs, and fraud. Part 39 does not apply to the execution of transactions cleared by DCOs; its provisions apply only to the clearing of transactions by DCOs.

The Commission received three comment letters on proposed part 39.7 Although the Commission has made various changes in response to the comments as discussed below, the final rules do not differ significantly from those that were proposed.

As did the proposed rule, final rule 39.1 provides that part 39 applies to any DCO that is registered, is required to be registered, or which voluntarily applies to be registered with the Commission. The Commission agrees with comments suggesting that grandfathered DCOs also be specifically included in this scope provision and has accordingly amended it to include DCOs that are “deemed to be registered,” which is the language used in the CFMA to refer to grandfathered DCOs.8 Thus, the final part 39 rules apply to any DCO, as defined under section 1a(9) of the Act,9 which is registered or deemed to be registered with the Commission, is required to become so registered, or which voluntarily seeks to become so registered. Final rule 39.3 provides that an organization meeting all requirements is “deemed registered” sixty days after receipt of an application unless notified otherwise.10

Rule 39.3 also sets forth the requirements for registration. As proposed, the rule required that an applicant meet the definition of a DCO provided by section 1a(9) of the Act, which in turn, requires that the entity perform certain functions. As noted by BOTCC, however, an applicant that has not been grandfathered pursuant to section 5b(d) of the Act will not have performed the activities envisioned by that definition. The Commission has modified the rule, therefore, to state that an applicant need only represent that it will operate in accordance with the definition of a DCO contained in section 1a(9) of the Act.11

Other requirements of rule 39.3 include submission by an applicant of its rules and a demonstration that the applicant is able to satisfy the core principles of the Act to the extent that its ability to do so is not self evident from the applicant's rules. As proposed, rule 39.3 also would have required applicants to submit “any” agreements with third parties that would enable the applicant to comply with the core principles and descriptions of “any” system test procedures, tests conducted or test results. BOTCC commented that “[t]hese materials can be voluminous. More importantly, these materials frequently will contain trade secrets of the submitting party or be subject to detailed confidentiality procedures established by third-party system providers and other vendors.” 12 BOTCC therefore recommended that the rule “be amended to require an applicant only to submit such information as is necessary to demonstrate the applicant's compliance with core principles.” 13 The Commission has modified the rule to clarify that the agreements and descriptions of system tests referred to in rule 39.3 that must be submitted are those that will enable the applicant to comply, or demonstrate the applicant's ability to comply, with the core principles.14

On December 22, 1999, the Bureau of Alcohol, Tobacco and Firearms published a temporary rule, T.D. ATF-421, in the Federal Register (64 FR 71918, Dec. 22, 1999). This temporary rule implemented several provisions found in section 9302 of the Balanced Budget Act of 1997 (Act), Pub. L. 105-33, 111 Stat. 672. Section 9302 of the Act had amended the Internal Revenue Code of 1986 at sections 5704(b), 5712, 5754 and 5761(c). These amendments: placed restrictions on the importation of previously exported tobacco products, required markings on tobacco products or cigarette papers and tubes removed or transferred without payment of the federal excise tax, provided penalties for selling, relanding, or receiving, within the jurisdiction of the United States, tobacco products or cigarette papers and tubes which have been labeled and shipped for exportation and were removed after the effective date, and authorized the Secretary to prescribe minimum capacity or activity requirements as a criteria for issuance of a manufacturer's permit. These new provisions of law became effective January 1, 2000.

The temporary rule, T.D. ATF-421, implemented these changes in law by providing new and amended regulations in parts 200, 270, 275 and 290 of title 27 of the Code of Federal Regulations (CFR). Concurrently with the temporary rule, ATF also published a notice of proposed rulemaking, Notice No. 887 (64 FR 71927, Dec. 22, 1999), that solicited comments regarding the temporary regulations.

On April 18, 2000 the United States District Court for the District of Columbia in the civil action, World Duty Free Americas, Inc. v. Treasury, (D.D.C. No. 00-00404 (RCL)), issued a temporary injunction enjoining the Treasury Department from enforcing the temporary regulations at 27 CFR 275.11 and 27 CFR 275.83, in T.D. ATF-421, to the extent that they prohibited the importation of cigarettes purchased in U.S. duty free stores up to the limit allowed by the personal use exemption provided by 19 U.S.C. 1555 and the Harmonized Tariff Schedule of the United States, 19 U.S.C. 1202, subheadings 9804.00.65, 9804.00.70 and 9804.00.72.

Later, on November 9, 2000, the President signed the Tariff Suspension and Trade Act of 2000, Public Law 106-476, 114 Stat. 2101, that included the Imported Cigarette Compliance Act of 2000 (ICCA 2000). Several sections of the IRC that were amended by Balanced Budget Act of 1997 were further amended by the ICCA 2000, including sections 5704(d), 5754 and 5761(c). These new amendments require that tobacco products and cigarette papers and tubes manufactured in the United States and labeled or shipped for exportation under the IRC can only be re-imported by the original manufacturer, or by an export warehouse proprietor authorized to do so by the original manufacturer. Also, articles labeled for exportation may not be sold or held for sale for domestic consumption in the United States unless they are removed from their export packaging and repackaged by the original manufacturer into new packaging that does not contain an export label. Finally, the ICCA 2000 requires the destruction of tobacco products forfeited under section 5761(c).

In addition, the Consolidated Appropriations Act, 2001, signed December 21, 2000, Public Law 106-554, 114 Stat. 2763, amended the IRC at section 5761(c) by adding language to the law that provides that travelers entering the United States, if they claim and are granted a personal use exemption, are allowed to bring U.S. manufactured tobacco products labeled for export back into the United States up to the quantity allowed entry free of tax and duty under Chapter 98 of the Harmonized Tariff Schedule of the United States. In addition, a traveler claiming such a personal use exemption upon arrival at the border may voluntarily relinquish to the U.S. Customs Service any excess of such quantity without incurring the penalty under section 5761(c). However, no quantity of tobacco products, other than the quantity allowed entry free of tax and duty under chapter 98 of the Harmonized Tariff Schedule of the United States, may be relanded or received as a personal use quantity.

ATF believes that the above-described changes in the law are clear and leave no discretion in implementation. However, because of the litigation then pending in World Duty Free Americas, Inc. v. Treasury, ATF decided to issue a notice of proposed rulemaking prior to the issuance of a final rule.

On March 26, 2001, ATF published a notice of proposed rulemaking in the Federal Register (Notice No. 913, 66 FR 16425, March 26, 2001) to solicit public comments on proposed regulations. In that notice, ATF proposed to amend the regulations in 27 CFR parts 275, 290 (currently part 44) and 296 (currently part 46) in order to implement several of the new provisions of law found in the ICCA 2000 and the Consolidated Appropriations Act, 2001. The public was invited to submit comments on this notice for a period of 60 (sixty) days ending May 25, 2001.

Following the publication of Notice No. 913 there were two separate rulemaking actions which affected the numbering system for the regulations that were proposed in Notice No. 913. The regulations at 27 CFR part 290 have been recodified as 27 CFR part 44. Similarly the regulations at 27 CFR part 296 have been recodified as 27 CFR part 46. Thus, all references to parts 290 and 296 in Notice 913 will now appear in this final rule as parts 44 and 46 respectively.

In response to Notice No. 913, ATF received one letter of comment from Mr. Craig A. Johnson of Philip Morris Incorporated. In his letter, Mr. Johnson stated that Philip Morris Incorporated urged prompt adoption (without change) of the proposed rule, which would implement the provisions of the ICCA 2000. He further stated that he understood that U.S. Customs will be promulgating regulations to implement the other provisions of this new law which amends the Tariff Act of 1930 and he urged ATF and U.S. Customs to coordinate with each other to enforce the law.

The proposed regulations have been largely adopted as proposed in Notice No. 913. The following is a summary of those sections of the IRC that were amended by the Balanced Budget Act of 1997 and further amended by the ICCA 2000 and the Consolidated Appropriations Act, 2001. Also discussed are the sections of the regulations that have been amended by this final rule.

Section 9302 of the Balanced Budget Act of 1997 added a new section, 26 U.S.C. 5754, to the IRC entitled, “Restriction on importation of previously exported tobacco products.” This new section became effective on January 1, 2000 and it placed severe limitations on the conditions under which previously exported tobacco products, and cigarette papers and tubes may be imported or brought back into the United States. Section 5754 stated that such products may only be imported or brought into the United States as provided in section 5704(d). The referenced section, 5704(d), allowed previously exported tobacco products and cigarette papers and tubes to be released from Customs custody, without payment of tax, for transfer to a manufacturer of tobacco products or cigarette papers and tubes, or to the proprietor of an export warehouse. Thus, under section 5754, the only condition under which previously exported tobacco products and cigarette papers and tubes could be imported or brought into the United States was by release from Customs custody to a manufacturer or an export warehouse proprietor as an in-bond transfer. However, section 5704(d) allowed previously exported tobacco products to be transferred to any manufacturer of tobacco products or cigarette papers and tubes, or to any export warehouse proprietor. The law did not mandate that the previously exported products return to the original manufacturer or export warehouse proprietor as authorized by the original manufacturer.

Section 4002 of the ICCA 2000 further amended sections 5754 and 5704(d) of the IRC whereby tobacco products and cigarette papers and tubes manufactured in the United States and previously exported may be imported or brought into the United States, if such articles are released from Customs custody with the partial duty exemption provided in section 5704(d), or are returned to the original manufacturer of such articles as provided in section 5704(c). Further, section 5704(d) of the IRC was amended by deleting a reference to “a manufacturer of” and inserting “the original manufacturer of” tobacco products or cigarette papers and tubes. The term “proprietor of an export warehouse” was also amended by inserting the phrase “authorized by such manufacturer to receive such articles” after the term “proprietor of an export warehouse.” Therefore, the amended language of the law in 5704(d) now refers to “proprietor of an export warehouse authorized by such manufacturer to receive such articles.”

Thus, with these amendments to sections 5754 and 5704(d), previously exported tobacco products and cigarette papers and tubes of United States manufacture may be imported or brought into the United States by: (1) release from Customs custody under 5704(d) to “the original manufacturer” or to “the proprietor of an export warehouse authorized by such manufacturer to receive such articles” or, (2) return to the original manufacturer of such articles as provided in 5704(c).

This final rule amends the regulations at 27 CFR 275.82 to reflect the above described changes in the law at 26 U.S.C. 5754. Further, amended section 275.82(c) of the regulations is the section that provides for the type of importations described under 26 U.S.C. 5704(d) and amended section 275.82(d) of the regulations provides for the type of importations described under 26 U.S.C. 5704(c).

As discussed above, section 9302 of the Balanced Budget Act of 1997 amended the IRC by adding section 5754 which imposed restrictions on the importation of previously exported tobacco products. Thus, only articles which had been exported from the United States were subject to the re-importation restriction. It also amended section 5704(b) by providing that tobacco products, and cigarette papers and tubes may not be transferred or removed under 26 U.S.C. 5704(b) unless they bear the proper marks, labels and notices.

Section 4002 of the ICCA 2000 further amended the IRC by providing new language at section 5754 whereby tobacco products and cigarette papers and tubes manufactured in the United States and “labeled for exportation” are subject to the restrictions and penalties applicable to this section. Thus, the new language at section 5754 makes the law applicable to both exported articles and articles labeled for export, but not exported. The Committee report that accompanied the bill stated: “The provision expands the application of the special tax penalty for re-importing tobacco products to include the sale in the U.S. domestic market of tobacco products labeled for export (but not actually exported). Thus, this penalty can be imposed in addition to the present-law penalties and other sanctions that apply to tobacco products that might be removed for export, but instead are diverted into the U.S. domestic market.” S. Rep. No. 503, 106th Cong., 2nd Sess. 89 (2000).

This final rule amends the regulations at 27 CFR 275.82 to reflect the above described change in the law. Specifically, 27 CFR 275.82(a) now states that the provisions of this section apply to “tobacco products and cigarette papers and tubes manufactured in the United States and labeled for exportation.” The penalty provisions in 27 CFR 275.83(a), which implement verbatim section 5761(c), already applied to articles “labeled or shipped for exportation.” Therefore, since articles labeled for exportation are already addressed in section 275.83, it was not necessary to amend this section to add the term “labeled or shipped for exportation.”

Section 9302 of the Balanced Budget Act of 1997 imposed a new civil penalty on persons, other than manufacturers or export warehouse proprietors, who sell, reland or receive tobacco products or cigarette papers or tubes that have been labeled or shipped for exportation under Chapter 52 of the IRC. However, section 9302(i) of this Act also provided that the amendments to the IRC under the Balanced Budget Act of 1997 only applied to “articles removed” after December 31, 1999. As a consequence, articles that were removed on or before December 31, 1999 were not subject to the new penalty. Thus, relanded tobacco products in packages bearing export marks that were lawfully removed from Customs custody and entered into the United States prior to January 1, 2000 were lawful products and not subject to the civil penalty, or other criminal provisions of Chapter 52 of the IRC.

Section 4002 of the ICCA 2000 further amended the IRC by providing new language at section 5754(a)(1)(C) whereby tobacco products and cigarette papers and tubes manufactured in the United States and labeled for exportation may not be sold or held for sale for domestic consumption in the United States unless such articles are removed from their export packaging and repackaged by the original manufacturer into new packaging that does not contain an export label. Further, the provisions of section 4002 take effect 90 days after enactment of the Act and, therefore, are effective on February 7, 2001. See section 4002(d) of the ICCA 2000 for the effective date.

The consequence of this amendment is that whereas the Balanced Budget Act of 1997 had allowed previously exported articles that were imported before January 1, 2000 to be legally sold on the domestic market, the ICCA 2000 makes the sale or holding for sale of such articles illegal effective February 7, 2001, unless they are removed from their export packaging and repackaged by the original manufacturer into new packaging that does not contain an export label.

The Committee report that accompanied the bill, stated: “The provision also authorizes the Treasury Department to seize all export-labeled tobacco products found in the U.S. domestic market regardless of the date of removal.” S. Rep. No. 503, 106th Cong., 2nd Sess. 89 (2000).

Further, amended section 5754(a)(2) also provides that the restrictions on export-labeled articles also apply to articles that have been altered by a person other than the original manufacturer. Thus, if a person places stickers over the export label, or otherwise attempts to conceal or remove the export label on the packaging, the restrictions in 26 U.S.C. § 5754 still apply to that article.

This final rule amends the regulations at 27 CFR 275.82(e) and (f), and 46.166(b) and (c) (formerly 296.166(b) and (c)) to reflect these changes in the law.

Section 9302 of the Balanced Budget Act of 1997 amended the IRC by adding a new civil penalty at 26 U.S.C. § 5761(c). The penalty applies to persons, other than manufacturers or export warehouse proprietors, who sell, reland or receive tobacco products or cigarette papers or tubes that have been labeled or shipped for exportation under Chapter 52 of the IRC. In addition to the civil penalty, criminal penalties and forfeiture of the product and any vessel, vehicle or aircraft involved in relanding or removing such product could be imposed. However, section 5761(c) did not specify how the Department of the Treasury should dispose of forfeited tobacco products.

Section 4002(c) of the ICCA 2000 amended section 5761(c) of the IRC by adding language which requires that all relanded tobacco products and cigarette papers and tubes shall be forfeited to the United States and destroyed. The Committee report that accompanied the bill stated, “The provision also provides that tobacco products that are forfeited to the Federal Government under present-law provisions must be destroyed (rather than being disposed of in any manner administratively determined by the Treasury Department).” S. Rep. No. 503, 106th Cong., 2nd Sess. 89 (2000).

This final rule amends the regulations at section 275.83(c) by providing that forfeited tobacco products and cigarette papers and tubes will be destroyed.

As discussed earlier, the Balanced Budget Act of 1997 amended the IRC by adding two new sections of law aimed at restricting the importation of previously exported tobacco products. 26 U.S.C. 5754 provided that only manufacturers of tobacco products and export warehouses can import previously exported tobacco products. In addition, section 5761(c) provided penalties for selling, receiving, and relanding of tobacco products labeled or shipped for export. Neither section of law provided an exemption for travelers entering the United States with small quantities of tobacco products for personal use.

This application of the law was challenged by several operators of duty free stores in a civil action, World Duty Free Americas, Inc. v. Treasury. The court in World Duty Free issued a temporary injunction enjoining the Treasury Department from enforcing the temporary regulations at 27 CFR 275.11 and 275.83 to the extent that they prohibited the importation of cigarettes purchased in U.S. duty free stores up to the limit allowed by the personal use exemption provided by 19 U.S.C. 1555 and the Harmonized Tariff Schedule of the United States, 19 U.S.C. 1202, subheadings 9804.00.65, 9804.00.70 and 9804.00.72.

As discussed earlier, on November 9, 2000 the President signed the ICCA 2000. Section 4003 of the ICCA 2000 amended the IRC at section 5761(c) by inserting the following language: “This subsection and section 5754 shall not apply to any person who relands or receives tobacco products in the quantity allowed entry free of tax and duty under subchapter IV of chapter 98 of the Harmonized Tariff Schedule of the United States. No quantity of tobacco products other than the quantity referred to in the preceding sentence may be relanded or received as a personal use quantity.”

Shortly thereafter, on December 21, 2000, the President also signed the Consolidated Appropriations Act, 2001. Section 315 of the Consolidated Appropriations Act, 2001 further amended section 5761(c) in the IRC by substituting the following language: “This subsection and section 5754 shall not apply to any person who relands or receives tobacco products in the quantity allowed entry free of tax and duty under chapter 98 of the Harmonized Tariff Schedule of the United States, and such person may voluntarily relinquish to the Secretary at the time of entry any excess of such quantity without incurring the penalty under this subsection. No quantity of tobacco products other than the quantity referred to in the preceding sentence may be relanded or received as a personal use quantity.”

Under this revised language in the law, travelers entering the United States, if they claim and are granted a personal use exemption, are allowed to bring U.S. manufactured tobacco products labeled for export back into the United States up to the quantity allowed entry free of tax and duty under chapter 98 of the Harmonized Tariff Schedule of the United States. In addition, a traveler claiming such a personal use exemption upon arrival at the border may voluntarily relinquish to the U.S. Customs Service any excess of such quantity without incurring a penalty under this section. Only the numerical quantity allowable under the Harmonized Tariff Schedule of the United States free of tax and duty may be considered as a personal use quantity.

In addition, section 315 of the Consolidated Appropriations Act, 2001 made the above described allowance for travelers retroactive to January 1, 2000, when the original restrictions and penalties imposed by the Balanced Budget Act of 1997 took effect.

In accordance with the above described amendments to the IRC, this final rule amends the regulations at 27 CFR 275.82(i) and 275.83(d) to provide that personal use quantities allowed under the law are exempt from the restrictions and penalties applicable to reimported tobacco products. Further, the definition of “relanding” at 27 CFR 275.11 has been amended to delete the second sentence relating to the relinquishment of tobacco products by travelers, which is now delineated in the revisions to 27 CFR 275.82 and 275.83.

During the comment period for Notice 913, ATF noted a technical inconsistency in the language of the law at 26 U.S.C. 5754 and 5761(c). That technical inconsistency and the solution are discussed as follows.

Prior to the enactment of the ICCA 2000, section 5754 of the IRC provided that tobacco products and cigarette papers and tubes previously exported from the United States could be imported into the United States “only as provided in section 5704(d)” (emphasis added). Further, the corresponding penalty in section 5761(c) specifically exempted “(b) and (d) of section 5704”. Thus, the importation of previously exported products under section 5704(d) was exempt from the penalty provisions in section 5761(c).

With the passage of the ICCA 2000, section 5754 was amended to provide that tobacco products and cigarette papers and tubes manufactured in the United States and labeled or shipped under the IRC for exportation may be imported or brought into the United States, after their exportation, only if such articles are either eligible to be released from customs custody “with the partial duty exemption provided in section 5704(d) or are returned to the original manufacturer of such article as provided in section 5704(c).” Thus, under the revised language in section 5754, products may be imported by the original manufacturer under sections 5704(c) or 5704(d).

However, a problem arises with the language of the corresponding penalty provision in section 5761(c). Section 5761(c) continues to provide a penalty for selling, receiving, or relanding tobacco products “except as provided in (b) and (d) of section 5704.” This is the same language used in section 5754 when it was first introduced by the Balanced Budget Act of 1997.

Thus, while section 5754 now authorizes importations under sections 5704(c) and (d), the penalty provision in 5761(c) only exempts from penalty those imports that are made under sections 5704(b) and (d). Therefore, authorized importations under 5704(c) could still be subject to the penalty imposed by section 5761(c). This appears to be a technical error in the language of the law, with a result that Congress did not intend.

After consideration of this inconsistency, ATF has reviewed the law at 26 U.S.C. 5704(d) and determined that its language is broad enough to include the importation of both packaged articles and articles that “are not put up in packages.” Thus, ATF has concluded that articles that might be imported under section 5704(c) can also be imported under section 5704(d) and thereby become exempt from the penalty provision in section 5761(c).

In order to address this problem, ATF has made some minor amendments to the language of the regulations at 27 CFR 275.82(c) and (d) and 275.83. Pursuant to these amendments, an original manufacturer that intends to import any bulk articles manufactured in the United States and labeled for exportation may do so under 27 CFR 275.82(d) (26 U.S.C. 5704(c). Such articles will be administratively deemed to be imported or brought in under section 275.83(c) (26 U.S.C. 5704(d)). Thus, the potential penalty under section 275.83 (26 U.S.C. 5761(c)) will be avoided.

In addition to amendments described above, this final rule amended the authority cite that appears after 27 CFR 44.185 (formerly 27 CFR 290.185), Label or Notice, to include a reference to 26 U.S.C. 5704(b), which allows the Secretary to prescribe appropriate marks, labels or notices.

It has been determined that this regulation is not a significant regulatory action as defined by Executive Order 12866. Accordingly, this final rule is not subject to the analysis required by this Executive Order.

It is hereby certified that this final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. The revenue effects of this rulemaking on small businesses flow directly from the underlying statute. Likewise, any secondary or incidental effects, and any reporting, recordkeeping, or other compliance burdens flow directly from the statute. Pursuant to 26 U.S.C. 7805(f), a copy of the proposed regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received.

This final rule does not contain any new collections of information nor does it revise existing collections of information to impose new burdens. Consequently, the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rulemaking.

Drafting Information. The principal author of this document is Mr. Daniel Hiland, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

The Coast Guard published a temporary final rule in the Federal Register on August 21, 2001, (66 FR 43774) establishing a temporary safety zone in the Gulf of Alaska, southeast of Narrow Cape, Kodiak Island, Alaska, effective from 2 p.m. on August 31, 2001 through 7:30 p.m. on September 15, 2001. The zone is needed to protect the safety of persons and vessels operating in the vicinity during a rocket launch from the Alaska Aerospace Development Corporation (AADC), Narrow Cape, Kodiak Island facility. The AADC recently revised the launch date to September 17, 2001. The Coast Guard is correcting the effective date of the rule to correspond with the new schedule for the launch date. This correction changes the 16-day effective period, between August 31 and September 15, 2001, to a single day, September 17, 2001.

In rule FR Doc. 01-21083 published on August 21, 2001 (66 FR 43774), make the following corrections. On page 43775, in the first column, on lines 3 through 5, remove “each day between August 31, 2001 and September 15, 2001” and replace it with “on September 17, 2001”. On page 43775, in the first column, on lines 27 through 29, remove “each day between August 31, 2001 and September 15, 2001” and replace it with “on September 17, 2001”. On page 43775, in the second column, on lines 36 and 37, remove “from August 31, 2001 to September 15, 2001” and replace it with “on September 17, 2001”. On page 43776, in the second column, on lines 4 through 6, (paragraph (b)), remove “from 2 p.m. on August 31, 2001, until 7:30 p.m. on September 15, 2001” with “from 2 p.m. through 7:30 p.m. on September 17, 2001”.

In the Veterans Claims Assistance Act of 2000, Pub. L. 106-475 (the VCAA), Congress amended sections 5102 and 5103 of Title 38, United States Code, and added new sections 5100 and 5103A, establishing new duties for VA in the claims development and adjudication process. Congress also amended section 5107 by deleting the concept of a “well-grounded claim” previously contained in that section, while retaining the claimant's responsibility to present and support a claim for benefits. In section 5103A(f) Congress stated that nothing in section 5103A was to be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured as described in section 5108.

In the Federal Register of April 4, 2001 (66 FR 17834), VA published a proposal to amend 38 CFR 3.159 to implement the VCAA. Interested persons were invited to submit comments on or before May 4, 2001. We received comments from various organizations and individuals, including the American Legion and the National Veterans Legal Services Program (jointly submitted); Paralyzed Veterans of America; Vietnam Veterans of America; Disabled American Veterans; National Organization of Veterans Advocates, Inc.; State of Florida Department of Veterans' Affairs; the National Veterans Organization of America, Inc.; and other interested persons.

Competent Medical Evidence and Competent Lay Evidence. We proposed to define “competent medical evidence” in § 3.159(a)(1) to mean evidence provided by a person who, through education, training, or experience, is qualified to offer medical diagnoses, statements or opinions. We proposed that the term would include statements conveying sound medical principles found in medical treatises, medical and scientific articles, and research reports or analyses. We proposed to define “competent lay evidence” in § 3.159(a)(2) to mean evidence not requiring that the person offering it have specialized education, training, or experience. We proposed that lay evidence be competent if offered by someone who has knowledge of facts or circumstances and conveys matters that can be described by a lay person. Accordingly, while a lay person would not be competent or qualified to offer medical opinions or to diagnose a medical condition, a claimant or other lay person would be competent to describe symptoms of disability experienced or observed in him/herself or others. These definitions are consistent with those discussed in the legislative history of the VCAA, 146 Cong. Rec. H9915 (daily ed. Oct. 17, 2000) (explanatory statement on H.R. 4864, as amended), and reflect existing case law governing the VA claims adjudication process.

One commenter stated that we should delete these definitions as unnecessary. Other commenters objected to defining these terms by regulation, stating that to do so may lead VA adjudicators to reject evidence preliminarily at the development stage, or to become “mired in technical assessments of the competency of the evidence.” Consideration of the competency of the evidence is a necessary step inherent in the adjudication process and one with which VA adjudicators are already familiar. In our view, defining these terms fosters a consistent application of these concepts in the adjudication process, and ensures that a claimant is likewise aware of the types and nature of evidence that will help substantiate a claim. Therefore, we have retained these definitions in the regulatory language.

Two of these same commenters stated, alternatively, that because an assessment of the competency of the evidence should always be a part of VA's decision-making process, the inclusion of the word “competent” in the regulatory definition was therefore redundant. As previously stated, we believe there is value in including this definition in the regulatory language so that the claimant understands how this term, used by Congress in the VCAA and discussed in the legislative history of the Act, is applied to the evidence received by VA in support of a claim.

Another commenter suggested that we revise the definition to state that competent lay or medical evidence must also be “credible.” The VCAA refers to competent evidence in the context of determining when a VA medical examination or medical opinion is necessary. It does not require that the evidence also be credible. Moreover, credibility is what a VA decisionmaker determines in weighing the competent evidence of record. It is not a requirement to be met in order for evidence to be considered competent. Therefore, we have made no change to the proposed regulatory language based on this comment.

With particular respect to the proposed definition of “competent medical evidence,” one commenter thought the inclusion of medical treatises and other similar authoritative medical writings resulted in an overly broad definition that would lead VA decisionmakers to misuse these materials by relying on them to deny a claim. However, VA intentionally broadened this definition to encompass these materials for the benefit of the claimant who may want to submit such materials, which are commonly found on the Internet or from other sources, in support of a claim. VA adjudicators have always had access to authoritative medical writings, such as Dorland's Medical Dictionary and the Merck Manual, as aids in deciding claims. In fact, 38 CFR 4.130, the schedule of ratings for mental disorders, specifically incorporates the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM IV) and refers to its use as the basis for the schedule's nomenclature and diagnostic criteria. In our view, both VA and the claimant benefit from the claimant's awareness that “competent medical evidence” includes such materials and that he or she may rely upon them to support a claim. Therefore, no change to the regulatory language has been made based on this comment.

Regarding the proposed definition of competent lay evidence specifically, one commenter suggested that the regulation should provide that VA would accept any lay statement as credible unless rebutted by affirmative evidence. This suggestion reflects the manner in which VA treated lay evidence on the issue of service incurrence in determining whether a claim was well grounded. In pre-VCAA procedures, lay evidence was generally accepted as credible for the purpose of meeting the evidentiary threshold well-grounded-claim requirement of showing that there was some evidence of an event, injury, or disease in service. Nonetheless, when a well-grounded claim was considered on its merits, VA claim procedures required that the decisionmaker consider all the evidence of record, assigning appropriate weight to both the lay and medical evidence. We note, as well, that if VA were to accept any claimant's statement as true on its face to establish the existence of an in-service event, injury or disease, without considering the veteran's service records and other evidence, this practice would conflict with the intent of 38 U.S.C. 1154(b). Under section 1154(b), in the case of a combat veteran, VA must accept satisfactory lay evidence of service incurrence or aggravation of an injury or disease alleged to have been incurred or aggravated in combat service, if such lay evidence is consistent with the circumstances, conditions, or hardships of this combat service even if there is no official record of such incurrence or aggravation. To permit every claimant, whether or not he or she served in combat, and whether or not the claimed injury is combat-related, to be able to establish in-service incurrence or aggravation based on the claimant's lay statement alone would nullify the meaning of section 1154(b). For all of these reasons, we have made no change to the regulatory language based on these comments.

Another commenter wanted us to make clear that lay evidence includes statements from the claimant. Not every claimant is a lay person, however; claims for benefits are also filed by physicians and nurses and their statements might qualify as competent medical evidence. Therefore, we have not made the change to the proposed regulatory language suggested by this comment.

One commenter stated that the regulation should indicate that lay evidence may be considered as partially competent so that a VA decisionmaker will not disregard a lay statement in its entirety if it should also happen to contain a medical opinion which would not be considered competent medical evidence. We decline to make any change in the proposed regulatory language based on this comment because VA decisionmakers are already obligated to consider all the evidence of record, both lay and medical, when deciding a claim. This would require VA adjudicators to consider those portions of the lay evidence submitted that are competent. Amending the regulation as suggested by this comment would result in an unnecessary redundancy.

Substantially Complete Application. We proposed to define a “substantially complete application” for benefits in § 3.159(a)(3) as one that contains the claimant's name; his or her relationship to the veteran, if applicable; service information, if applicable; the benefit claimed and any medical conditions on which it is based; and the claimant's signature. If applicable, as in claims for nonservice-connected disability or death pension, and parents' dependency and indemnity compensation, we proposed that a substantially complete application must also include a statement of income. This information is generally sufficient for VA to identify the benefit claimed, and determine whether the claimant is potentially eligible for it. This is basic information VA needs in order to inform a claimant of the types of information and evidence that would be required to substantiate a claim.

One commenter suggested that we clarify the requirement of “service information” to state, instead, “sufficient service information for the VA to verify the duration and character of the claimed service, if applicable.” This commenter stated that such a change would reflect VA's duty to assist the claimant in verifying service lest the language of the regulation be interpreted to mean that the claimant has the sole responsibility of establishing qualifying service. This is a reasonable suggestion and reflects current VA procedure. Therefore, the proposed regulatory definition of a “substantially complete application” in § 3.159(a)(3) has been changed to require “sufficient information for VA to verify the claimed service, if applicable.”

Another commenter objected to the proposed requirement that a substantially complete application identify the benefit sought, on the grounds that it should be VA's burden to determine all the benefits to which a claimant is entitled. Under section 5107(a), it is the claimant's responsibility to present and support a claim for benefits. Requiring a claimant to identify the benefit sought is a necessary prerequisite for VA to inform a claimant of the information and evidence necessary to substantiate the claim for that benefit. Therefore, no change to the proposed regulatory language has been made based on this comment.

Another commenter indicated that the current application form, VA Form 21-526, Veteran's Application for Compensation or Pension, is too long, and that instead of defining “substantially complete application,” VA should revise VA Form 21-526. This form is designed to elicit more information than is required to file a substantially complete application for benefits. However, if it was completed in its entirety by the claimant, the information on the form would enable VA to immediately begin development of the claim because it requests the identity of all relevant evidence including medical treatment records. VA would not then be required to send a letter to the claimant seeking to identify relevant records as it must do if the claimant submits only the minimal information necessary to file a substantially complete application. This same commenter noted that the requirement in the regulation for the signature of the claimant is at odds with the new Veterans On-Line Application Process (VONAPP), a recent initiative of VA, in which the agency accepts applications from claimants via the Internet. Currently, VA still requires a signature from the claimant in conjunction with such applications, although it is working cooperatively with other agencies on establishing secure on-line signature procedures. Therefore, we have not deleted this definition per this commenter's suggestion.

Event In Service. We proposed to define the term “event” in § 3.159(a)(4) to mean a “potentially harmful occurrence,” such as would be associated with a particular duty assignment or place of duty because there are circumstances in service other than an injury or disease that, under 38 U.S.C. 1110, could meet the criteria of an “incurrence” in service for establishing entitlement to service-connected compensation benefits. Nonetheless, some commenters asserted that the definition could be used to winnow out claims when, in the opinion of the VA decisionmaker, the in-service event is not perceived as “potentially harmful.” One commenter stated that any occurrence in service could be seen as “potentially harmful.”

We agree that many events in service could be seen as potentially harmful, and that the assessment of whether an event in service was harmful is necessarily a retrospective one. The definition of “event” was intended to be expansive and liberal, not limiting. As reflected in the Supplementary Information accompanying the proposed rule, we believed the term could encompass such “events” as exposure to environmental hazards as well as such activities as parachute jumping or being a forward observer, although these events did not result in a specific injury or disease or aggravation of a pre-existing condition while in service. In our view, it is helpful for a claimant to understand that actual treatment in service for a medical condition is not an absolute requirement to establish service connection, and we see utility in defining this term for the claimant. To ensure its expansive interpretation, we have revised the proposed regulatory language to state: “For purposes of paragraph (c)(4)(i), ‘event’ means ‘one or more incidents associated with places, types, and circumstances of service giving rise to disability.’ ” This definition is derived from the language of section 1154(a) which provides that in claims for service-connected compensation, consideration will be given to the “places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence . . .” This definition would permit a VA decisionmaker to consider any number of events, including exposures to environmental hazards as an event in service that could have led to the claimed disability for which the veteran seeks compensation.

Information. Some questions have been raised about the meaning of the term “information,” which appears in the VCAA with respect to the information necessary to complete an application and the information and evidence necessary to substantiate a claim. Although the VCAA itself does not define the term, its legislative history gives guidance as to what Congress intended the term to mean. The history suggests that Congress was referring to non-evidentiary facts that are necessary to complete an application or to substantiate claim. See 146 Cong. Rec. H9914, H9914 (daily ed. Oct. 17, 2000) (identifying Social Security number and addresses as types of “information” necessary to substantiate a claim). We have defined the term accordingly in § 3.159(a)(5).

We proposed in § 3.159(b)(1) that, if VA receives an application for benefits that is substantially complete, VA would notify the claimant of the information and medical or lay evidence required to substantiate the claim. As explained in the Supplementary Information, it is clear from the legislative history of the VCAA that Congress intended the notice to inform the claimant of the type of medical evidence required, such as diagnoses or opinions as well as the type of lay evidence that could be used to substantiate the claim. We further proposed that the notice would also inform the claimant which information and evidence the claimant is to provide and which information and evidence VA will attempt to obtain on the claimant's behalf. This proposed regulatory language mirrored the provisions in section 5103A.

We received a comment stating that the regulation should require VA, at the point in time when any evidence has been received in a claim for compensation benefits, to determine whether that evidence satisfies a necessary element of the claim and so advise the claimant. We decline to revise the regulation to accommodate this suggestion; such a regulatory requirement would necessitate multiple reviews of a single claim and is administratively unworkable. It would, moreover, increase the time it takes to decide a single claim, contributing to the backlog of claims that await processing. The intent of Congress, as indicated in the plain language of the VCAA and in the legislative history, is that VA advise a claimant as to the evidence and information necessary to substantiate a claim once VA receives a substantially complete application. There is no indication that Congress intended that VA review each claim and advise the claimant every time any evidence relevant to it is received. When a decision is reached on a claim, the rating decision document will cite all relevant evidence obtained and considered, as well as any relevant evidence not obtained or considered. That rating decision document is shared with the claimant as part of our notification procedures.

Some commenters stated that the regulation should provide for multiple notices to claimants of the information and evidence required to be submitted by them. We have made no change based on this suggestion because multiple notices would also be administratively unworkable. Development of evidence is a shared responsibility, with the claimant having the responsibility to present and support a claim for benefits. 38 U.S.C. 5107(a). If VA provides a clear and understandable notice to the claimant of what information and evidence is necessary to substantiate the claim, and what portion of that information and evidence VA will try to obtain, and what portion the claimant is required to provide, we believe we have satisfied our statutory duty. The notice will also provide the claimant with a phone number to reach the VA employees actually handling the claim, and the claimant can easily contact VA if he or she has additional concerns or questions.

Other commenters stated that this regulatory provision should state in more specific detail what will be required to be contained in every notice to the claimant on what is needed to establish entitlement for an individual claim. It is neither reasonable nor administratively feasible to require by regulation the level of specificity advocated by these commenters. The statutory notice required by the VCAA occurs at an early point in the claims process when the claimant often has not yet identified the evidence and information relevant to the claim, and VA does not yet know what kinds of specific evidence to try to obtain on behalf of the claimant. Without knowing what this evidence is, VA cannot advise the claimant as to whose responsibility it will be to obtain it. VA attempts to be as specific as it can in these notices. However, the content of VA's notice to the claimant depends on the amount of information and evidence VA already has regarding an individual claim, and cannot precisely be defined by regulation. Therefore, we have made no change to the proposed regulatory language based on these comments.

Another commenter stated that the regulation should specifically state that the notice required under section 5103(a) will be sent to the claimant before a decision on the claim has been made. We agree and have changed the language of § 3.159(b)(1) to state that VA will send the required statutory notice “When VA receives a complete or substantially complete application for benefits,” rather than “If VA receives” this application.

One commenter stated that the regulation should require VA to tell the claimant a date certain for the submission of requested information and evidence. It has always been VA's practice to advise the claimant that he or she has one year to submit requested information or evidence, although it was requesting that the claimant submit the information or evidence within a shorter period of time. This procedure enables VA to take action on the claim as quickly as possible. There are no plans to change this procedure; VA will continue to advise a claimant that he or she has one year to submit requested evidence, as indicated in § 3.159(b)(1) of the regulation. Additionally, we have not revised the proposed regulatory language to reflect the period of time in which VA will request that the claimant submit the requested information or evidence, because VA would like to retain the flexibility to vary the time frame it currently specifies if in the future it is appropriate to do so.

One commenter stated that the regulation should provide that if VA receives evidence that is inadequate to substantiate the claim, VA should contact the claimant and give him or her the opportunity to correct the inadequacy or bolster the evidence. In our view, the regulatory language ensures that, with the claimant's cooperation, VA will have all the evidence relevant to the claim before it at the time a decision is made on the claim. Whether all of this relevant evidence is sufficient to substantiate the claim is a determination that is not made until the claim is adjudicated. If all relevant evidence was obtained and considered but it is insufficient to establish entitlement, VA issues a rating decision that informs the claimant of the reason(s) why entitlement was not established. The claimant has the opportunity to appeal the decision if it is unfavorable, which gives the claimant the opportunity to present additional evidence to support the appeal. This procedure is consistent with long-standing adjudication practice which was not altered by the VCAA. Therefore, no change to the regulatory language has been made based on this comment.

Mirroring the statutory language in section 5103(b), we proposed in § 3.159(b)(1) that, if VA does not receive the information and evidence requested from the claimant within one year of the date of the notice to the claimant, VA cannot pay or provide any benefits based on that application. We proposed that VA would give a claimant a reasonable period of time to respond to the request for information or evidence, and if the claimant fails to respond, VA may decide the claim based on all the information and evidence of record. Some decisions would be grants of benefits while some decisions would be denials of benefits. We stated at § 3.159(b) that if the claimant subsequently submitted the requested information or evidence within one year of the date of VA's request for it, VA would make another decision. We note that if such new information or evidence warrants a VA examination or further development, VA would take whatever action is necessary to reconsider the claim on this new information or evidence.

A number of commenters objected to this proposed provision for various reasons. Some commenters felt that VA's failure to wait one full year for a claimant to respond to a request for information or evidence would discourage claimants from submitting the requested evidence. This is speculation that VA's long-standing claims process does not corroborate. In our experience, claimants are generally cooperative with VA's efforts to help them substantiate their claims, and respond to VA requests for information as quickly as possible, and usually within the suggested time frame for doing so.

Other commenters interpreted section 5103(b) to provide that VA is prohibited from deciding a claim without waiting for one full year for information or evidence requested from the claimant. We believe such an interpretation is unreasonable and would clearly contravene the intent of the VCAA. Section 5103(b) is essentially an effective date provision governing the earliest date from which benefits may be paid if a claimant submits requested information and evidence. If interpreted as preventing VA from taking award action until the one year period expired, VA would be unable to grant a benefit when the claimant has not responded to a request for information or evidence, even though VA has obtained evidence establishing that the claimant is entitled to that benefit. Moreover, the procedure as proposed is identical to the manner in which VA had adjudicated claims for many years prior to the VCAA and Morton v. West, 12 Vet. App. 477 (1999), remanded sub nom. Morton v. Gober, 243 F.3d 557 (Fed. Cir. 2000), opinion withdrawn and appeal dismissed, 14 Vet. App. 174, the court decision that led to the passage of the VCAA. It is a procedure familiar to veterans' service organizations and other veterans' advocates. Moreover, it is a procedure that is responsive to the interests of Congress as well as veterans' advocates in improving the timeliness of VA claims processing. It is our experience that once evidence is not received in response to a request for it, extending the time period does not improve the chances of receiving it. Therefore, no change to the proposed regulatory language has been made based on these comments.

However, we have made one change from the proposed rule. Rather than allowing VA to proceed to decide a claim if the claimant has not responded “within a reasonable period of time” to a request for information or evidence or a request for any pertinent evidence in the claimant's possession, the final rule will allow VA to proceed to decide the claim if the claimant has not responded “within 30 days” of such requests. Specifying the period in which a claimant may respond before VA may decide the claim allows every claimant to know in advance the minimum time he or she will have to respond to VA's request. This rule will not require VA to decide a claim 30 days after its request if the claimant has not responded. It will merely allow VA to proceed on the claim. Furthermore, a claimant need not necessarily provide the evidence and information necessary to substantiate the claim within 30 days. A claimant would, however, be required to “respond” in some fashion to VA's request in order to have VA delay further action on the claim to give the claimant time to procure and submit the requested information and evidence. Such a response could merely request VA to wait beyond the 30-day period while the claimant attempts to gather evidence.

One commenter stated that VA should decide a claim without waiting for one year only if the claimant has fully responded to the request for information or evidence, or if VA is granting the claim. We agree that if VA can grant the claim based on the evidence of record it has obtained without the information or evidence requested from the claimant, it should do so as quickly as possible, and this regulation is consistent with such action. To clarify that this evidence may include VA medical examinations or opinions, we have revised the regulatory language at § 3.159(b)(1) to state that VA's decision on the claim would be based on all “information and evidence contained in the file, including information and evidence it has obtained on behalf of the claimant and any VA medical examinations or medical opinions.”

However, nothing in the VCAA expressly requires that VA keep a claim pending when the claimant has failed to respond to requests for information or evidence within 30 days. The duty to assist is not “always a one-way street'; the claimant cannot passively wait for VA's assistance in circumstances where he or she may or should have information that is essential to obtaining supporting evidence. Zarycki v. Brown, 6 Vet. App. 91 (1993); Wamhoff v. Brown, 8 Vet. App. 517 (1996). Nonetheless, in cases where the claimant has failed to respond, VA's case management system encourages personal phone contacts with the claimant during which the veterans service center representative can obtain by phone the information requested of the claimant. The case management process also ensures that VA does not take any action on a claim without first informing the claimant of what it needs to decide the claim, and this assurance is reflected in the regulatory language at § 3.159(b)(1).

Even in cases where a claimant fails to respond to VA's request for information and evidence, and the claim is denied based on the other evidence of record, the claimant still has another one year after the notification of the denial to appeal the denial of the claim. At that time, he or she has another opportunity to submit the requested evidence or new evidence. In addition, the claimant has a right to two de novo reviews of the claim, one by a Decision Review Officer and another by the Board of Veterans' Appeals. In our view, the claimant suffers no prejudice from this long-standing practice of deciding a claim based on the evidence of record when the claimant has failed to timely respond to requests for information or evidence. Therefore, we have maintained the proposed language codifying this procedure. However, we have revised the proposed language to clarify that the one-year deadline applies to both the information and evidence necessary to substantiate the claim and that the claimant is to provide, as well as to the evidence in the claimant's possession that pertains to the claim.

A comment from one service organization stated that this regulation failed to recognize that under § 3.156(b) and § 20.1304(b), evidence submitted in connection with an appeal will be considered in connection with the claim on appeal even if it was not received within one year of the date VA requested it. We recognize that there is a potential conflict between §§ 3.156(b) and 20.1304(b) and section 5103(b)(1) and proposed § 3.159(b)(1). A possible technical amendment to section 5103(b)(1), which would eliminate the potential conflict, is being considered. If the amendment does not materialize, VA will have to address the implications section 5103(b)(1) has for §§ 3.156(b) and 20.1304(b).

One commenter stated that if VA decides a claim less than one year from the time it requests information or evidence from a claimant, the claimant may confuse the one-year time period in which to submit requested information or evidence with the one year time period allowed by statute for the claimant to file an appeal. See 38 U.S.C. 7105. The one-year time periods are mandated by statute, and VA cannot alter them by regulation. Therefore, no change to the regulatory language has been made based on this comment.

Several commenters argued for a “good cause” exception for extending the statutory one year time period for a claimant to submit requested information or evidence, to accommodate claimants who are “seriously disabled,” mentally incompetent or who have other hardships caused by poverty, lack of access to transportation, or remoteness of domicile. Two commenters cited the difficulty experienced by claimants who try to obtain service medical records to submit to VA as the basis for a good cause exception. We have made no change to the proposed regulatory language to accommodate such an exception. There is no statutory authority permitting VA to create such an exception. Section 5103(b)(1) states that if VA does not receive the information or evidence to be provided by a claimant “within one year from the date of such notification, no benefit may be paid or furnished” based on that application. The statutory scheme created by Congress places significant duties on VA to obtain the evidence relevant to a claim. However, the VCAA reiterated that it is the claimant's duty to present and support a claim for benefits, including the duty to submit information and evidence as designated by VA in its statutory notice to the claimant. Clearly, Congress envisioned one year to be an adequate amount of time for the claimant to cooperate with VA's efforts by submitting requested information or evidence. This information or evidence would include such things as a stressor statement in a claim for compensation for PTSD, or the name and address of treating physicians. We also note in response to the commenters who cited the difficulty of obtaining service medical records that in a compensation claim it is the responsibility of VA rather than the claimant to obtain those records if they are relevant to the claim and maintained or held by a governmental entity.

We proposed in § 3.159(b)(2) that, if VA receives an incomplete application in which the claimant has failed to provide the minimal information required to permit VA to begin development of the claim, we would defer assistance until the claimant substantially completed the application. This provision is plainly consistent with section 5103A(a)(3). Nevertheless, several commenters objected to this proposed language, reflecting a misunderstanding that VA would deny claims contained in an incomplete application. As the regulatory language clearly reflects, VA will defer assistance on incomplete applications, not deny them. Therefore, no change to the regulatory language based on these comments has been made.

We proposed in § 3.159(c)(1) that VA will make reasonable efforts to help a claimant obtain relevant records from non-Federal-agency sources including records from private medical care providers, current or former employers, and other non-Federal government sources. We also proposed to retain the prior language of § 3.159 providing that VA will not pay any fees charged by a custodian of the records.

One commenter stated that VA should request congressional authorization to pay for costs associated with obtaining private medical records, a suggestion that is beyond the scope of this rulemaking. Other commenters stated that VA should budget funds to pay for private medical records, also an issue that is beyond the scope herein. Two commenters stated that VA should make an exception and pay for private records for claimants who are destitute or mentally incompetent. Because VA has no statutory authority to expend funds in this manner, we cannot create the exceptions suggested by these comments.

Consistent with the language of section 5103A(b)(1), we proposed in paragraphs (1)(i) and (2)(i) of § 3.159(c) that the claimant must adequately identify any Federal and non-Federal records, providing enough information to enable VA to request them. We proposed that the claimant should identify the custodian of the records, the approximate time frame covered by them, and in the case of medical treatment records, the condition for which treatment was provided. One commenter stated that to require a claimant to identify the custodian of the records would be “unduly burdensome.” One commenter cited the difficulty this may present for claimants with memory problems. This commenter stated that the claimant should be required to give VA only enough information to allow VA to pursue retrieval of the records. We agree that VA needs only enough information to try to retrieve the record, but believe that the identity of the custodian of the record is critical and reasonable information to request of the claimant. It would be very impractical and inefficient for VA to try to obtain records without knowing who has them. Therefore, no change to the proposed regulatory language requiring the claimant to identify who has custody of the records has been made based on this comment.

One commenter objected to the language of the regulation at § 3.159(c)(1)(i), (c)(2)(i), and (c)(3) that provides that a claimant's failure to adequately identify existing records “may result in a denial of the benefit sought.” In this commenter's view, this language would encourage adjudicators “to think in terms of denial of the claim” particularly because of the regulatory authority in § 3.159(b)(1) providing that VA may decide a claim on the evidence of record if a claimant fails to timely respond to a request for information or evidence. Although this proposed regulatory language reflects a procedure that has been in place for many years, long before the well-grounded claim process, we have deleted those sentences in § 3.159(c)(1)(i) and (ii), (c)(2)(i) and (ii), (c)(3), and (e)(2) because they are unnecessary and state the obvious.

We also proposed that VA will assist claimants by requesting relevant records in the custody of a Federal agency or department. One commenter stressed that VA should limit such requests to only relevant records. The proposed language already contained such a limitation, and we decline to make any changes to the regulatory language that would result in a redundancy. The same commenter suggested that VA should limit the number of requests it makes for Federal records. However, such a suggestion directly contravenes the express language of section 5103A(b)(3), requiring VA to continue to attempt to obtain these records unless it is reasonably certain that they do not exist or until further efforts to obtain them would be futile. Therefore, we have made no change to the proposed rule to limit these efforts to a specific number of attempts. One commenter suggested that VA should define the word “futile” by regulation. However, the proposed regulatory language at § 3.159(c)(2) gave examples of circumstances in which VA may conclude that further efforts would be futile and in our view there is no need to further define such circumstances.

One commenter stated that the regulation should contain a “good faith extension” of the one-year time period to secure Federal records; however, there is no such one year time period in the VCAA and the inclusion of a good faith exception is unnecessary because VA is obligated to make repeated efforts to secure Federal records, which is tantamount to “good faith efforts.”

When VA is unable to obtain relevant records after making reasonable efforts to do so, section 5103A(b)(2) requires VA to (1) notify the claimant that it is unable to obtain relevant records, (2) identify the records it cannot obtain, (3) briefly explain the efforts it made to obtain them, and (4) describe any further action VA will take with respect to the claim. In the case of requests for non-Federal agency or department records, we proposed in § 3.159(e)(1) that VA would provide the claimant with written or oral notice of its inability to obtain them at the time it makes its final request for them. In the case of requests for non-Federal agency or department records, VA proposed that it would provide oral or written notice after VA is reasonably certain that the records do not exist or that further efforts to try to obtain them would be futile.

We received several comments objecting to the proposal to provide oral notice to claimants when VA is unable to obtain records as proposed in § 3.159(e). Some commenters stated that a message conveyed orally is more subject to misunderstanding by a claimant than a message conveyed by letter, and suggested that claimants prefer contact by letter. However, in VA's 2000 Survey of Veterans' Satisfaction with the VA Compensation and Pension Claims Process, 43.0 percent of respondents who were contacted by phone about their claim indicated they were “very satisfied “ with the claims process. Only 28.3 percent of the respondents who were not contacted by phone stated that they were “very satisfied” with the process. In response to another survey question, 31.8 percent of the respondents stated that they preferred phone contact with VA during the claims process whereas only 15.9 percent stated they preferred mail contact. We believe these data support VA's decision to increase use of the phone to expedite the claims process; not only is it practical, but claimants prefer it. In our experience, phone contacts facilitate cooperation between VA and the claimant and afford claimants the opportunity to ask questions about their claims, including the status of VA's efforts to obtain relevant records. While not all claimants are available by phone during normal business hours, VA has found that when phone communications are successful, claim processing is expedited, benefiting both VA and the claimant. Ultimately, however, the decision on whether to communicate with a claimant by phone, letter, or other means such as e-mail or facsimile is based on the availability of the claimant and the resources of the VA regional office handling the claim. This regulatory language is intended to ensure the flexibility needed for efficient, modern claims processing.

Moreover, nothing in the VCAA precludes oral notice. In fact, the legislative history of the VCAA shows that Congress sought to accommodate VA's plans to expand its options for communicating with claimants beyond the written letter format. The legislative history of the VCAA shows that Congress intentionally removed the words “in person or in writing” from former 38 U.S.C. 5102 with respect to the notice VA must give a claimant when the claimant has not submitted a substantially complete application. 146 Cong. Rec. H9913, H9914 (daily ed. Oct 17, 2000) (explanatory statement on H.R. 4864, as amended). The removal of this language was intended to “permit veterans and VA to use current and future modes of communication.” Thus, VA's proposal to use oral communication is consistent with congressional intent.

Other commenters objected to the proposal to provide oral notice because they perceived there would be no written documentation of this notice. However, VA does make a record of such oral contacts. VA's case management system uses a Claims Automated Processing System (CAPS), a sophisticated electronic development and notice tracking system. Any written or oral contact with a claimant is documented by date and subject matter of the communication. Alternatively, when appropriate, VA standard procedure requires that oral conversations with a claimant be memorialized in writing, a procedure from which VA has no intention to deviate. See Veterans Benefits Administration's Adjudication Procedures Manual M21-1, Part III, ¶11.17. Therefore we have added a provision to § 3.159(e) to require VA to make a record of any oral notice conveyed to the claimant.

One commenter stated that the regulation should provide that if VA learns that a requested medical record no longer exists, after making reasonable efforts to obtain it, the claimant's lay evidence should be accepted as credible evidence in its place. Because a claimant, if a lay person, is not competent to provide medical evidence, we decline to make the change suggested by this comment.

Under section 5103A(d)(1), VA must provide a medical examination or obtain a medical opinion in compensation claims “when such an examination or opinion is necessary to make a decision on the claim.” Section 5103A(d)(2) provides that an examination or opinion is “necessary” if the evidence of record, considering all the information and lay or medical evidence, including statements of the claimant: (1) Contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's military service; but (3) does not contain sufficient medical evidence to decide the claim.

We proposed to implement section 5103A(d)(2) by providing in § 3.159(c)(4)(i) that, in claims for disability compensation, VA would provide an examination or obtain a medical opinion if, after completing its duty to assist a claimant in obtaining records from Federal agency and non-Federal agency sources, the evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) Contains competent lay or medical evidence of a current diagnosed disability or of persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or another service-connected disability.

Several commenters objected to the similarity between the proposed regulatory criteria for determining when a VA examination or opinion is necessary and the former well-grounded-claim requirements. Although the VCAA eliminated the need to establish a well-grounded claim to be entitled to VA assistance, section 5103A(d)(2) specifies when an examination or medical opinion will be considered necessary. Our regulatory criteria are derived from the corresponding statutory criteria at section 5103A(d)(2). Any similarity between our regulatory criteria and the former well-grounded-claim requirements is due to the similarity between the statutory criteria and the former well-grounded-claim requirements. Therefore, no change was made to the proposed regulatory language based on these comments.

One commenter stated that this regulatory language should expressly state that lay testimony may be considered when determining if a medical examination or medical opinion is necessary to decide the claim. Because the term “evidence” in the proposed regulatory language at § 3.159(c)(4) encompasses lay testimony, we decline to make the change suggested by this comment. Another commenter stated that the “information” of record should also be considered in determining whether a medical examination or medical opinion was necessary. Accordingly, we have added the term “information” to the proposed regulatory language in § 3.159(c)(4)(i) to state, “A medical examination or medical opinion is necessary if the information or evidence of record does not contain sufficient competent medical evidence to decide the claim.”

Another commenter suggested a change in the proposed regulatory language at § 3.159(c)(4) to state that VA must provide an examination or obtain a medical opinion where the “evidence is inconclusive to establish service connection.” However, the language of section 5103A(d)(2)(C) specifies that an examination or medical opinion is necessary when the record does not contain sufficient medical evidence. If the evidence lacking to establish service incurrence cannot be supplied by a VA examination or medical opinion, then providing an examination or obtaining an opinion would not benefit the claim. Therefore, no change to the proposed regulatory language was made based on this comment.

Several commenters objected to the proposed language requiring that the evidence of record establish that there was an event, injury or disease in service—the incurrence or aggravation element for service connection. In summary, these commenters felt that this criterion was too burdensome, and that this determination should be postponed until after a VA examination has been provided or a medical opinion obtained. Whether there was an injury or disease in service, or an event leading to injury or disease, is a finding of fact made by the VA decisionmaker. In our view, it is unreasonable to require a claimant to report for an unnecessary VA examination or to ask a medical expert to review the record when the evidence that would result (the examination report or medical opinion) would not be competent evidence of the incurrence or aggravation of a disease or injury in service. In such cases, there is no reasonable possibility that the examination would aid in substantiating the claim because it cannot provide the missing evidence. In the case of medical opinion evidence, for instance, a doctor cannot link a current condition to an injury or disease in service unless that injury or disease is shown to have existed. The evidence on this issue is independent of the VA examination or medical opinion. Therefore, no change has been made to the regulatory language to delete the criterion that the evidence establish an injury or disease in service or an event leading to injury or disease.

One commenter stated that even where there is no evidence of an event, injury or disease in service, a VA examination could establish the incurrence of an injury in some claims. The commenter offered as an example the case of a claim for compensation for a bone or muscle injury, for which a doctor could offer the opinion that a currently diagnosed arthritis is consistent with the veteran's statements describing a fall in service. However, this doctor's opinion would address the nexus, or relationship, between the current disability of arthritis and the claimed injury in service; it would not establish the underlying predicate issue, that is, whether the veteran, in fact, had a fall in service. This same commenter further stated that for disabilities that are presumed under law to have been incurred or aggravated in service based on their manifestation during a specified period after service, a physician's opinion could link the disability to reported symptoms occurring during the presumptive period, thus establishing the existence of the condition within the presumptive period. VA agrees that, under those circumstances, a medical opinion could link the claimed presumptive disability to symptoms shown by other evidence to have occurred during a presumptive period. However, a medical opinion given after the presumptive period could not itself establish the presence of symptoms in the presumptive period. Section 3.307(c) “Prohibition of certain presumptions” prevents VA from accepting a physician's opinion that a presumptive condition was present and manifest to a compensable degree during an applicable presumptive period based merely on the advanced stage of the current disability without other evidence of the condition during service or the presumptive period. Therefore, there would be no use in providing an examination or obtaining an opinion in the absence of any evidence of symptoms during the presumptive period.

Another commenter stated that the Supplementary Information accompanying the proposed rule assumed that only contemporaneous records such as service medical records could establish an in-service incurrence of a disability, in disregard of the evidentiary value of lay testimony. We have revised the proposed regulatory language to clarify that lay evidence can also be considered in establishing that an event, injury or disease occurred in service. Under § 3.159(c)(4), VA will review the “information and lay and medical evidence of record” to determine if an examination or medical opinion is necessary to decide the claim.

One commenter stated that in claims for secondary service connection, (for a disability caused or aggravated by a service-connected condition), where the primary condition is a presumptive one, there will be no evidence of an “event, injury or disease” in service that will meet the regulatory requirement. Since the proposed regulatory language specifically provided for examinations or medical opinions for secondary service connection conditions in § 3.159(c)(4)(i)(C), we have made no change based on this comment.

We received several comments on the requirement that the evidence of record “indicate[ ]” that the claimed disability or symptoms “may be associated” with service. Notably, neither Congress nor VA in its proposed rule, required either competent evidence or medical evidence of such an association as a prerequisite to a VA examination or medical opinion. VA proposed to require only an indication by the evidence of record. Nonetheless, some commenters misconstrued the proposed language to require more. Other commenters expressed the opinion that this regulatory language would require that the veteran “establish” that an in-service event caused his or her current disability. However, neither the proposed regulatory language nor the Supplementary Information stated that the claimant must provide such evidence. In our view, the VCAA's term, “indicates,” is a clear signal of Congress' intent that the evidentiary record need not definitively establish such an association or “nexus” between current disability and service; rather, the mere indication of such a possible association based on all the information and evidence of record would dictate the necessity of a VA medical examination or opinion to clarify this evidentiary point. Because the regulatory language proposed is consistent with this interpretation, we made no change to the regulation based on these comments.

In § 3.159(c)(4)(ii), we stated circumstances in which such an association with service may be shown, including continuity of symptoms after discharge from service, post-service treatment for a condition, or other possible association with service. Two commenters stated that the examples should not include “evidence showing continuity of symptoms of a disability since the veteran's release from active duty” because it is unnecessary in light of the continuity provisions of § 3.303(b). We agree, and have deleted this language from the final rule.

Another commenter stated that symptoms of a presumptive condition occurring during a presumptive period should satisfy the statutory criteria that the evidence show that the current condition “may be associated” with service. We agree that evidence of symptoms of a presumptive condition manifested to a compensable degree during a presumptive period would be evidence that a claimed presumptive condition may be associated with service. In such cases, a VA examination may be necessary to determine the degree of disability caused by the presumptive condition. When the record shows evidence of symptoms of a condition that may or may not be a presumptive one during an applicable presumptive period, a VA medical examination or medical opinion would be necessary because the medical evidence is insufficient to determine if the symptoms are consistent with the currently diagnosed condition.

We have revised the regulatory language at § 3.159(c)(4)(i)(B) to state that VA will consider a medical examination or opinion necessary when the evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, and establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease manifested during an applicable presumptive period.

Finally, one commenter stated that the regulation should expressly state that a medical examination is not necessary when sufficient medical evidence has been submitted to decide the claim. We have made no change to the regulation based on this comment. The regulation states circumstances in which VA will be required to provide a VA medical examination or obtain a medical opinion. VA may certainly schedule examinations in circumstances other than those set forth in this regulation; section 5103(g) states that VA may provide more assistance than required by statute. This regulation sets the floor, not the ceiling for VA assistance in providing medical examinations or obtaining medical opinions.

Section 5103A(a)(2) states that VA has no duty to assist a claimant if or when there is no reasonable possibility that VA assistance would help substantiate the claim. We proposed to implement that statutory provision in § 3.159(d) by stating that VA will refrain from or discontinue providing assistance when there is no reasonable possibility that its assistance would substantiate a claim. We proposed three examples of circumstances in which VA will refrain from providing assistance: (1) When a claimant applies for a benefit for which he or she is not legally eligible; (2) when a claimant asserts a claim that is inherently incredible or clearly lacks merit; and (3) when a claimant claims a benefit to which the claimant is not entitled as a matter of law. In some cases, VA's determination that there is no reasonable possibility of VA assistance substantiating the claim may be made on the face of a substantially complete application. In other cases, the futility of further assistance may not become apparent until some assistance has been given. Therefore, we proposed that VA will “discontinue” assistance when the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim.

One commenter stated that there is no reason to define the statutory phrase, “no reasonable possibility.” We disagree. The term is subject to varying interpretations, and it benefits both the claimant and VA if VA defines the term and sets a standard.

One commenter objected to the first circumstance described, stating that it should be VA's duty to help the claimant establish legal eligibility for a benefit if eligibility is not clear on the face of the application. As noted previously, we have amended the definition of a “substantially complete application” to indicate that it contains enough information for VA to verify service and character of discharge, which VA would need to determine eligibility. However, no amount of VA assistance can provide eligibility for a benefit to a claimant who is in fact ineligible. Therefore, we retain our proposed rule that VA will refrain from assisting to obtain evidence if the information on a substantially complete application indicates no reasonable possibility that VA assistance will substantiate the claim because the claimant is not legally eligible for the benefit.

We also received comments to the proposed second circumstance, that is, when a claim is inherently incredible or clearly lacks merit. Some commenters felt that VA would use this provision as a pretext to refuse assistance for potentially meritorious claims. VA will not do that. Some commenters stated that certain mentally disabled claimants might assert claims that would seem “inherently incredible” when in actuality these assertions may be manifestations of their mental illness. The VCAA requires VA to notify a claimant of the information and evidence necessary to substantiate a claim in all claims for which a substantially complete application has been submitted, regardless of whether VA is going to assist in obtaining evidence. If a VA decisionmaker determines that a claim is inherently incredible, the decisionmaker can request that the claimant submit information or evidence as provided by section 5103(a) and § 3.159(b)(1) that would lead VA to conclude that it should provide assistance to substantiate the claim. Moreover, the proposed rule would not preclude a claimant from submitting information and evidence that might lead VA to change its determination that there is no reasonable possibility that VA assistance will help substantiate the claim.

Other commenters felt that “clearly lacks merit” was too vague a term to be of useful guidance for either VA or a claimant. Others stated objections to the term “inherently incredible.” We have retained both terms in the final rule because they are not mutually exclusive and cover different circumstances. It may not be clear that a claim clearly lacks merit until VA has requested and received records relevant to the claim, whereas it may be appropriate to conclude that a claim is inherently incredible on its face based merely on the facts asserted in the claim or after certain development. On this same issue, one service organization commented that we should consider a standard by which VA would provide assistance, “unless it can affirmatively determine that a medical expert could not find any association under current medical or scientific knowledge.” As a substitute for “inherently incredible” claims, we find merit in this suggestion, but believe that the standard, as phrased, may be construed to permit the VA adjudicator to apply his or her own unsubstantiated medical opinion. Because this is contrary to long-standing veterans' law principles, we have not revised the final regulatory language based on this comment.

One commenter stated that the third circumstance, “no entitlement under the law” should be deleted, asserting that VA may develop such claims and come up with evidence supporting entitlement under a new legal theory. We decline to make the change in the proposed regulatory language as suggested because this circumstance encompasses claims for which there is no legal entitlement under any theory, such as claims for compensation for a congenital or developmental condition.

The VCAA states that nothing in section 5103A “shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured.” On the other hand, section 5103(g) provides that nothing in section 5103A precludes VA from providing such other assistance as the Secretary considers appropriate. Accordingly, we proposed to provide limited assistance to claimants trying to reopen finally decided claims.

VA proposed that it would request any existing records from Federal agencies or non-Federal agency sources, if reasonably identified by the claimant, in order to assist the claimant to reopen his or her claim. In our view, such assistance is appropriate because it could be accomplished with minimal effort and expense, although it would be a change from pre-VCAA procedures. These procedures arose from case law that required a claimant to first submit new and material evidence sufficient to reopen a claim before VA could assist in developing additional evidence to substantiate it.

Given section 5103A(f)'s express preservation of the finality of VA decisions, we proposed, however, to provide less assistance in attempts to reopen final previously disallowed claims than for original claims for compensation. We proposed that VA would not provide an examination or obtain a medical opinion to create new evidence that may or may not be material, given the substantial time, effort and expense involved in the VA examination and medical opinion process. Some commenters objected to this proposal on the grounds that it would disadvantage persons whose previous claims were denied not on the merits but on the basis that they were not well grounded, because many of these claimants may not have had their claims fully developed. However, claimants whose prior claims were denied as not well grounded would not be disadvantaged, since a claim that was previously denied as not well grounded should be easy to reopen compared to a claim denied on the merits. If a claim was denied as not well grounded, it was denied because of a lack of evidence relating to a fact necessary to establish a claim. For example, a claim may have been denied as not well grounded because there was no competent evidence that a veteran has a current disability. If there were any competent evidence that the veteran did have a current disability, that evidence would constitute new and material evidence, which would reopen the claim.

Some commenters stated that VA should also provide a VA examination or medical opinion to develop evidence to reopen a claim. This regulation presumes that a claim that was finally decided on the merits had been fully developed by VA, including a VA examination or medical opinion where necessary, because under the provisions of prior section 5107(a), VA had a duty to assist a claimant who filed a well-grounded claim. In our view, it is more than fair that VA impose some limit on the expenditure of its finite resources in subsequent efforts to assist a claimant substantiate a claim after it has once made reasonable efforts to assist and the evidence failed to substantiate the claim. Nevertheless, we have revised the proposed language of § 3.159(c)(4)(iii) to clarify that VA will consider providing an examination or obtaining a medical opinion only if new and material evidence is already presented or secured.

We also proposed to change the definition of “new and material evidence” in conjunction with VA's proposal in § 3.159 to define what actions it will take to assist a claimant in submitting evidence to reopen a finally denied claim. Several commenters objected to the proposed change in definition on the grounds that the VCAA did not address this issue. However, in our view, it is helpful for the claimant to understand the nature of the evidence that will reopen a claim, in light of the fact that it will now be easier for a claimant to reopen a claim because, unlike before, the claimant now will have VA assistance in obtaining evidence that is potentially new and material. Therefore, we have not withdrawn the proposed revision to § 3.156 based on these comments.

We proposed to redefine “material” evidence to mean “existing evidence that relates specifically to the reason why the claim was last denied.” Many commenters felt this language was too restrictive. We agree, and therefore have revised the final regulatory language at § 3.156(a) in a manner that more accurately conveys the meaning intended, to state that “Material evidence means existing evidence that . . . relates to an unestablished fact necessary to substantiate the claim.”

One commenter objected to the proposed definition because it did not provide that VA would review any evidence submitted as new and material “in connection with evidence previously assembled.” This commenter stated that this omission may negatively impact claims where all the evidence of record may lead to a different conclusion on the issue of whether new and material evidence had been submitted, than does one piece of evidence in isolation. We agree and have changed the regulatory language to state that “Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.”

We also proposed that new and material evidence “must raise a reasonable possibility of substantiating the claim,” a requirement to which several commenters objected. With respect to other claims for benefits, the VCAA provides that VA assistance is required unless there is no reasonable possibility that this assistance would aid in substantiating the claim. We believe it is fair and reasonable to apply the same standard—that there be a reasonable possibility that VA assistance would help substantiate the claim—in determining whether a claim has been reopened, triggering VA's full duty to assist by providing a VA examination or obtaining a medical opinion. Therefore, we have made no change to the proposed regulatory language based on these comments.

One commenter stated that the regulation should be revised to state specifically that new and material evidence could also be evidence that supports a different legal theory for entitlement. However, VA adjudicators are required to “grant[] every benefit that can be supported in law,” under § 3.103(a) which includes considering all possible legal theories of entitlement in deciding a claim. The same standard would apply in considering all legal theories applicable to reopening a claim. Therefore, we have made no change to the regulatory language based on this comment.

One commenter stated that VA should consider extending the comment period for another 30 days. We decline to do so. We are unaware of any comments other than those submitted and reviewed in this document. These comments were extensive and detailed. We have attempted to analyze these comments as quickly as possible to expedite the development of this final rule. As noted in the Supplementary Information accompanying the proposed rule, the United States Court of Appeals for Veterans Claims has concluded that the Secretary's authority to implement the VCAA could be usurped by the court's issuance of decisions as to the applicability of the VCAA, and as a consequence, judicial review of Board of Veterans' Appeals decisions on claims affected by the VCAA is nearing a standstill. Clearly, it is necessary to issue the final rule rather than extend the comment period another 30 days. Further, for these reasons, we have found good cause for not applying the delayed effective date provisions of 5 U.S.C. 553.

Another commenter suggested that we expressly incorporate the “benefit of the doubt” rule in § 3.159. However, since § 3.102 already addresses this issue, and is not in conflict with § 3.159, we decline to change the regulation as suggested.

As indicated by the proposal that these regulations be contained in 38 CFR part 3, this final rule applies only to claims for benefits that are governed by part 3. These benefits include compensation, pension, dependency and indemnity compensation, burial benefits, monetary benefits ancillary to those benefits, and special benefits.

These amendments are effective November 9, 2000, except for the amendment to 38 CFR 3.156(b), which is effective August 29, 2001. Except for the amendment to 38 CFR 3.156(a), the second sentence of 38 CFR 3.159(c), and 38 CFR 3.159(c)(4)(iii), the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided by the VCAA. Therefore, we will apply those provisions to any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date.

The second sentence of § 3.159(c) and § 3.159(c)(4)(iii), which relate to the assistance VA will provide to a claimant trying to reopen a finally decided claim, provide rights in addition to those provided by the VCAA. Authority to provide such additional assistance is provided by 38 U.S.C. 5103A(g), which provides that nothing in section 5103A shall be construed to preclude VA from providing such other assistance to a claimant in substantiating a claim as VA considers appropriate. Because we have no authority to make these provisions retroactively effective, they are applicable on the date of this final rule's publication. Accordingly, we will apply the second sentence of § 3.159(c), § 3.159(c)(4)(iii), and the amendment to 38 CFR 3.156(a), to any claim for benefits received by VA on or after August 29, 2001. We note that any future exercises by the Secretary of the discretionary authority granted by 38 U.S.C. 5103A(g) will be accomplished through rules published in accordance with Administrative Procedure Act rulemaking procedures.

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This amendment will have no consequential effect on State, local, or tribal governments.

This final rule has been reviewed by the Office of Management and Budget under Executive Order 12866.

All collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520) referenced in this final rule have existing OMB approval as forms. No changes are made in this final rule to those collections of information.

The Secretary hereby certifies that the adoption of these amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This action would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Section 107(d)(5) of the Clean Air Act (CAA) provides for areas to be designated as attainment, nonattainment, or unclassifiable with respect to the lead national ambient air quality standard (NAAQS). States are required to submit recommended designations for areas within their states. When an area is designated nonattainment, the state must prepare and submit a state implementation plan (SIP) pursuant to sections 110(a)(2) and 172(c) of the CAA showing how the area will be brought into attainment. The requirements for all SIPs are contained in section 110(a)(2) of the CAA. Section 172(c) of the CAA specifies the provisions applicable to areas designated as nonattainment for any of the NAAQS. EPA has also issued a General Preamble describing how EPA will review SIPs and SIP revisions submitted under Title I of the Act, including those State submittals containing lead nonattainment area SIP requirements (see generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)).

One of the specific requirements of section 172(c) is that states include in their lead nonattainment SIPs reasonably available control technology (RACT) emission limitations for existing sources. The EPA defines RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. When a state submits a lead nonattainment SIP that includes specific RACT emission limits for specific sources in the lead nonattainment area and these requirements are federally approved by EPA into Tennessee's SIP, any changes to those source-specific RACT emission limits require Tennessee to submit a revision to the SIP to EPA for approval.

The State of Tennessee had language included in this chapter of their SIP that granted the Tennessee Air Director the ability to change the RACT emission limits for sources specified in the SIP at any given time without prior approval from EPA. Region 4 requested that the State of Tennessee revise their SIP to provide that any changes to the source-specific RACT emissions limits would require EPA approval. In response to this request, the State of Tennessee submitted the following rule revision:

EPA is approving the aforementioned rule revision submitted by the State of Tennessee, because it meets all CAA requirements. The EPA is publishing this rule without a 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 if adverse comments are filed. This rule will be effective October 29, 2001 without further notice unless the Agency receives adverse comments by September 28, 2001.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. 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 29, 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. 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 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.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 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 will 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 site to be deleted from the NPL is the Western Pacific Railroad Site, Oroville, Butte County, California.

A Notice of Intent to Delete for this site was published in the Federal Register on July 18, 2001 (66 FR 37439). The closing date for comments on the Notice of Intent to Delete was August 17, 2001. No comments were received, therefore, EPA has not prepared a Responsiveness Summary. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such actions. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL. Deletion of a site from the NPL does not affect responsible party liability or impede Agency efforts to recover costs associated with response efforts.

The Northwest Regional Administrator, NMFS (Regional Administrator), determined that the recreational quota of 55,000 marked coho salmon for the area from Cape Falcon to Humbug Mountain had been reached, and closed the fishery for all salmon at midnight on July 19, 2001. Regulations governing the ocean salmon fisheries at 50 CFR 660.409 (a)(1) state that, when a quota for any salmon species in any portion of the fishery management area is projected by the Regional Administrator to be reached on or by a certain date, NMFS will, by notification issued under 50 CFR 660.411 (a)(2), close the fishery for all salmon species in the portion of the fishery management area to which the quota applies, as of the date the quota is projected to be reached.

In the 2001 annual management measures for ocean salmon fisheries (66 FR 23185, May 8, 2001), NMFS announced that the recreational selective fishery for marked hatchery coho in the area between Cape Falcon to Humbug Mountain, OR, would open on June 22 through the earlier of July 31 or the attainment of a 55,000-marked coho quota; it was also announced that the recreational season for all salmon except coho would reopen the earlier of August 1 or the attainment of the coho quota.

The Oregon Department of Fish and Wildlife (ODFW) reported the landed catch, as of July 18, 2001, was 42,179 marked coho salmon (77 percent of the quota). ODFW considered information related to angler effort and catch rate, and estimated that the remainder of the quota would be taken by July 19, 2001. Therefore, ODFW recommended that NMFS close the area, effective midnight on July 19, 2001. This would allow the recreational fishery for all salmon except coho to reopen July 20, 2001.

Based on information received from the Washington Department of Fish and Wildlife (WDFW) and ODFW, the Regional Administrator determined that modification of the weekly opening period for the commercial salmon fishery from the Queets River, WA, to Cape Falcon, OR, was justified to slow the chinook catch rates, to better monitor the fishery, and to avoid an early closure that would limit access to the coho quota. The weekly opening period was modified to implement a cycle of 4 days open/3 days closed and a limited retention regulation of 65 chinook per open period per boat. Modification of fishing seasons is authorized by regulations at 50 CFR 660.409 (b)(1)(i). Modification of the species that may be caught and landed during specific seasons, and the establishment or modification of limited retention regulations, is authorized by regulations at 50 CFR 660.409 (b)(1)(ii).

In the 2001 annual management measures for ocean salmon fisheries (66 FR 23185, May 8, 2001), NMFS announced that the commercial fishery for all salmon in the area from the Queets River, WA, to Cape Falcon, OR, would open the earlier of the day following closure of the U.S.-Canada Border to Leadbetter Pt. July troll fishery or July 28, but not before July 20, through the earliest of September 30 or the overall chinook quota (preseason 6,000-chinook guideline) or a 63,000-marked coho guideline. The fishery was scheduled to run continuously until 75 percent of either guideline was caught, then it would revert to a cycle of 4 days open/3 days closed. The annual measures also indicated that trip limits, gear restrictions, and guidelines may be instituted or adjusted inseason.

The U.S.-Canada Border to Leadbetter Pt. July troll fishery was closed in an inseason action on July 9, 2001, at 2359 hours l.t. (66 FR 38573, July 25, 2001). Therefore, the commercial fishery for all salmon from Queets River to Cape Falcon opened July 20, 2001.

The WDFW and ODFW reported, during a conference call on July 18, 2001, that the catch rate of chinook relative to coho was higher than anticipated based on observations from ongoing fisheries. The states were concerned that the chinook quota for the commercial fishery from Queets River to Cape Falcon was likely to be reached early, leaving a major portion of the coho quota unharvested. The states recommended that the fishery follow a cycle of 4 days open/3 days closed, and that a limit of 65 chinook per open period per boat be implemented effective July 20, 2001, to control and better assess the progress of the fishery and allow for further adjustments if necessary.

The Regional Administrator consulted with representatives of the Pacific Fishery Management Council, WDFW, and ODFW regarding the above inseason actions by conference call. The best available information on July 18, 2001, indicated that the catch/effort data and projections supported the recreational selective fishery closure and the commercial fishery season modifications. The states will manage the fisheries in state waters adjacent to the areas of the exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishermen of the closure in the area from Cape Falcon to Humbug Mountain, OR, effective 2359 hours l.t., July 19, 2001, and the adjustments in the area from Queets River to Cape Falcon effective 0001 hours l.t., July 20, 2001, were given prior to the effective dates by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

Because of the need for immediate action to stop the fishery upon achievement of the quota for the area from Cape Falcon to Humbug Mountain, OR, and for the season modifications for the area from Queets River to Cape Falcon, NMFS has determined that good cause exists for this notification to be issued without affording a prior opportunity for public comment because such notification would be unnecessary, impracticable, and contrary to the public interest. Moreover, because of the immediate need to stop a fishery upon achievement of a quota and modify a season because of estimates of effort and catch, the Assistant Administrator for Fisheries, NOAA, finds, for good cause, under 5 U.S.C. 553 (d)(3), that delaying the effectiveness of this rule for 30 days is impracticable and contrary to public interest.

These actions do not apply to other fisheries that may be operating in other areas.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2001 halibut bycatch allowance specified for the BSAI trawl rock sole/flathead sole/“other flatfish” fishery category, which is defined at § 679.21 (e)(3)(iv)(B)(2), was established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001) as 854 metric tons.

In accordance with § 679.21 (e)(7)(v), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2001 halibut bycatch allowance specified for the trawl rock sole/flathead sole/“other flatfish” fishery in the BSAI has been caught. Consequently, the Regional Administrator is closing directed fishing for species in the rock sole/flathead sole/“other flatfish” fishery category by vessels using trawl gear in the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20 (e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid exceeding the halibut bycatch allowance for rock sole/flathead sole/“other flatfish” fishery category constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553 (b)(3)(B) and 50 CFR 679.20 (b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid exceeding the halibut bycatch allowance for rock sole/flathead sole/“other flatfish” fishery category constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553 (d), a delay in the effective date is hereby waived.

This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.