The Oriental fruit fly, Bactrocera dorsalis (Hendel), is a destructive pest of citrus and other types of fruit, nuts, vegetables, and berries. The short life cycle of the Oriental fruit fly allows rapid development of serious outbreaks, which can cause severe economic losses. Heavy infestations can cause complete loss of crops.

The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), were established to prevent the spread of the Oriental fruit fly to noninfested areas of the United States. Section 301.93-3(a) provides that the Administrator will list as a quarantined area each State, or each portion of a State, in which the Oriental fruit fly has been found by an inspector, in which the Administrator has reason to believe the Oriental fruit fly is present, or that the Administrator considers necessary to regulate because of its proximity to the Oriental fruit fly or its inseparability for quarantine enforcement purposes from localities in which the Oriental fruit fly has been found. The regulations impose restrictions on the interstate movement of regulated articles from the quarantined areas. Quarantined areas are listed in § 301.93-3(c).

Less than an entire State will be designated as a quarantined area only if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are substantially the same as those imposed on the interstate movement of regulated articles; and (2) the designation of less than the entire State as a quarantined area will prevent the interstate spread of the Oriental fruit fly.

Recent trapping surveys by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service (APHIS) reveal that a portion of San Diego County, CA, is infested with the Oriental fruit fly. The Oriental fruit fly is not known to exist anywhere else in the continental United States except in San Bernardino County, CA.

State agencies in California have begun an intensive Oriental fruit fly eradication program in the quarantined area in San Diego County. Also, California has taken action to restrict the intrastate movement of regulated articles from the quarantined area.

Accordingly, to prevent the spread of the Oriental fruit fly to other States, we are amending the regulations in § 301.93-3 by designating a portion of San Diego County, CA, as a quarantined area for the Oriental fruit fly. The quarantined area is described in the rule portion of this document.

This rulemaking is necessary on an emergency basis to prevent the Oriental fruit fly from spreading to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

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

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

An environmental assessment and finding of no significant impact have been prepared for this interim rule. The site-specific environmental assessment provides a basis for the conclusion that the implementation of integrated pest management to eradicate the Oriental fruit fly will not have a significant impact on human health or the natural environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT . The environmental assessment and finding of no significant impact may also be viewed on the Internet at http://www.aphis.usda.gov/ppd/es/ppq/offsd.pdf.

This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The animal importation regulations (contained in 9 CFR part 93 and referred to below as the regulations), among other things, prohibit or restrict the importation of certain animals, including horses, into the United States to protect U.S. livestock from communicable diseases.

In § 93.301, paragraph (c)(1) prohibits the importation of horses into the United States from certain regions where contagious equine metritis (CEM) exists. Paragraph (c)(2) lists categories of horses that are excepted from this prohibition, including, in § 93.301(c)(2)(vi), horses over 731 days of age imported for permanent entry if the horses meet the requirements of § 93.301(e).

One of the requirements in § 93.301(e) is that mares and stallions over 731 days old imported for permanent entry from regions where CEM exists must be consigned to States listed in § 93.301(h)(6), for stallions, or in § 93.301(h)(7), for mares. The Administrator of the Animal and Plant Health Inspection Service (APHIS) has approved these States to receive stallions or mares over 731 days of age from regions where CEM exists because each State has entered into a written agreement with the Administrator to enforce State laws and regulations to control CEM, and each State has agreed to quarantine, test, and treat stallions and mares over 731 days of age from any region where CEM exists in accordance with § 93.301(e).

Rhode Island has entered into a written agreement with the Administrator of APHIS and has agreed to comply with all of the requirements in § 93.301(e) for importing stallions and mares over 731 days old from regions where CEM exists. Therefore, this direct final rule will add Rhode Island to the lists of States in § 93.301(h)(6) and (h)(7) approved to receive certain stallions and mares imported into the United States from regions where CEM exists.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comments. This rule will be effective, as published in this document, on December 31, 2001, unless we receive written adverse comments or written notice of intent to submit adverse comments by December 3, 2001.

Adverse comments are comments that suggest the rule should not be adopted or that suggest the rule should be changed.

If we receive written adverse comments or written notice of intent to submit adverse comments, we will publish a notice in the Federal Register withdrawing this rule before the effective date. We will then publish a proposed rule for public comment.

As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments within 30 days of publication of this direct final rule, this direct final rule will become effective 60 days following its publication. We will publish a notice in the Federal Register before the effective date of this direct final rule confirming that it is effective on the date indicated in this document.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

The share of purebred breeding horse imports coming from CEM-affected regions is a relatively small fraction of the total number of horses imported, ranging between 5 and 10 percent between 1996 and 1999 (table 1). However, horses supplied by CEM-affected countries are generally highly valued. In 1999, for example, the average value of a purebred breeding horse imported from a CEM-affected region was $52,300, whereas the average value of a purebred breeding horse imported from anywhere in the world (i.e., from both CEM-affected and CEM-free regions) was $11,700.

During these same 4 years, the United States imported 28,374 horses classified as “except purebred breeding” from CEM-affected regions (table 2). While it is possible that some of these horses from CEM-affected regions may be for breeding, it is more likely that they are imported for racing or exhibition. 1 During 1996-1999, about one of every five “except purebred breeding” horses imported into the United States came from CEM-affected countries. Their combined annual value comprised, on average, 60 percent of the value of all “except purebred breeding” horse imports.

The Office of the Comptroller of the Currency (OCC) published a final rule on June 11, 2001 (66 FR 31114) amending part 32. This final rule established a three-year pilot program that creates new special lending limits for 1-4 family residential real estate loans and small business loans, subject to certain conditions and requirements. The final rule added three new definitions to 12 CFR 32.2 and renumbered the existing definitions in that section. However, we inadvertently did not amend the cross-references in existing part 32 to reflect the changes in the numerical order of the definitions made by the final rule. This correction amends the cross-references throughout part 32 to reflect these changes.

Pursuant to section 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), the OCC finds good cause for dispensing with the requirements for notice and opportunity for public comment that the APA would otherwise require. Notice and comment on this amendment of part 32 are unnecessary because the renumbering of the cross-references is a technical, rather than a substantive, change. Moreover, if left uncorrected, the cross-references will cause confusion among readers of part 32 as amended because the cross-references currently do not refer to the correct definitional sections.

The APA generally requires that a final rule take effect 30 days after publication in the Federal Register . 5 U.S.C. 553(d). Similarly, section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 generally requires that a final rule issued by a Federal banking agency take effect on the first day of the first calendar quarter that begins on or after the date on which the regulation is published in final form. 12 U.S.C. 4802(b)(1). Both requirements are subject to a good cause exception. For the reasons previously explained, the OCC finds good cause for making this amendment to 12 CFR part 32 effective immediately upon publication.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 5 U.S.C. 603 and 604. As noted previously, the OCC has determined that it is not necessary to publish a notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis are not applicable.

The Comptroller of the Currency has determined that this final rule is not a significant regulatory action for purposes of Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 (UMA), Pub. L. 104-4, 109 Stat. 48, applies only when an agency is required to issue a general notice of proposed rulemaking or a final rule for which the agency published a general notice of proposed rulemaking, 2 U.S.C. 1532. As noted previously, the OCC has determined, for good cause, that notice and comment is unnecessary. Accordingly, the UMA does not require a budgetary impact analysis.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-08-03, amendment 39-11107 (64 FR 15920, April 2, 1999), which is applicable to all Boeing Model 737-600, -700, and -800 series airplanes, was published in the Federal Register on June 11, 1999 (64 FR 31518). The action proposed to continue to require an inspection of the power distribution panels (PDP) to verify proper installation of the power feeder terminals and associated hardware, corrective actions, if necessary, and repetitive torque checks of the terminal attachment screws. The action proposed to add a requirement for repetitive replacement of the PDP rigid bus assembly with a new assembly.

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 proposed AD.

Several commenters ask the FAA to revise the proposed AD to specify that replacement of the existing PDP rigid bus assemblies with new, improved assemblies terminates the repetitive torque checks in paragraph (b) and the repetitive replacements of the PDP rigid bus assemblies in paragraph (c) of the proposed AD. Three commenters point out that we have previously approved Boeing Service Bulletin 737-24-1128, dated April 29, 1999, as an alternative method of compliance (AMOC) with the repetitive torque check requirement of AD 99-08-03. That service bulletin describes procedures for replacement of existing rigid bus assemblies on the P91 and P92 PDPs with new, improved assemblies. One of the commenters states that the new, improved PDP rigid bus assemblies incorporate retaining blocks that are integral to the rigid bus cover, surround the termination assemblies, and provide a solid surface for the termination assemblies to bear on during installation and removal of power feeders, thus reducing the load transmitted through the attachment screws. The commenters state that installation of the new, improved PDP rigid bus assemblies addresses the unsafe condition in the proposed AD.

The FAA concurs. As noted by the commenters, replacement of existing rigid bus assemblies with new, improved assemblies eliminates the need for the repetitive replacement of PDP rigid bus assemblies specified in paragraph (c) of the proposed AD. Also, we have previously approved Boeing Service Bulletin 737-24-1128, and have approved that service bulletin as an AMOC for the repetitive torque checks required by AD 99-08-03, which this AD supersedes. Therefore, we have done the following in this final rule:

• Added a new paragraph (d) to this AD to state that replacement of existing PDP rigid bus assemblies with new, improved PDP rigid bus assemblies constitutes terminating action for the requirements of this AD.

• Revised paragraphs (b) and (c) of this AD to state that the requirements of those paragraphs only apply until paragraph (d) of this AD is accomplished.

• Added a new paragraph (e)(2) to this AD to state that AMOCs approved previously in accordance with AD 99-08-03 are approved for the corresponding requirements of this AD. (This provision should have been stated in the proposed rule but was inadvertently omitted.)

In a related issue, two commenters request that we revise the applicability statement of the proposed AD to remove airplanes on which improved PDP rigid bus assemblies have been installed during production.

We partially concur with this request. Airplanes equipped with the improved PDP rigid bus assemblies would not be subject to this AD. However, we must consider the possibility that some airplanes originally delivered with PDPs having the improved rigid bus assemblies may have been changed to be equipped with PDPs having rigid bus assemblies of the original design. This could occur as a result of rotation of spare parts inventories during routine maintenance replacements. Therefore, we have revised the applicability statement of this AD to state that this AD applies only to Boeing Model 737-600, -700, and -800 series airplanes equipped with PDPs bearing any of the Boeing part numbers in the “Existing Part Number” column of the table under paragraph 2.E., “Existing Parts Accountability,” of Boeing Service Bulletin 737-24-1128.

Two commenters ask us to revise paragraph (c) of the proposed AD to clarify appropriate replacement parts. The commenters question whether we intend paragraph (c) to require replacement of existing PDP rigid bus assemblies with identical parts (i.e., parts with the same part number as the existing parts), or with new, improved parts (as described in the previous section above). Both commenters note that replacement of existing PDP rigid bus assemblies with new, improved assemblies should eliminate the need for the repetitive replacement specified in paragraph (c).

We concur that we need to clarify under what circumstances it is necessary to repeat the replacement of the PDP rigid bus assembly required by paragraph (c) of this AD. Therefore, we have revised paragraph (c) of this final rule to require repetitive replacement of the PDP rigid bus assembly with a new assembly having the same part number as the removed part. As stated above, we have also added paragraph (d) to this AD to state that replacement of existing PDP rigid bus assemblies with new, improved rigid bus assemblies terminates the requirements of this AD.

One commenter requests that we confirm the availability of replacement parts from the manufacturer prior to issuance of this final rule. The commenter states that, as of the time of its comment, sufficient replacement parts have not been available to support replacement schedules. We have confirmed that the manufacturer can support replacement according to the schedule required by this AD, and no change to the final rule is necessary in this regard.

One commenter requests that we revise the Extended Twin Engine Operations (ETOPs) coverage in the Boeing 737 CMP Document to be consistent with the provisions of the proposed AD. The commenter notes that, while the proposed AD would require repetitive torque checks of the attachment screws of the power feeder terminals every 1,000 flight hours, and replacement of the PDP rigid bus assembly with a new assembly within 1,000 flight hours after every eighth torque check, the Boeing 737 CMP Document requires repetitive torque checks every 400 flight hours, with replacement of the PDP rigid bus assembly after every fourth check. The commenter notes that revision of the ETOPs information in the Boeing 737 CMP Document would provide consistency for all Boeing 737 “Next Generation” airplanes.

We do not concur. The torque check and replacement at the intervals required by this AD are intended to ensure that an adequate level of safety is maintained. However, the more conservative torque check and replacement intervals specified in the Boeing 737 CMP Document are necessary for airplanes performing ETOPS. No change to the final rule is necessary in this regard.

Paragraph (a) of the proposed AD specifies accomplishment of a “general visual” inspection. To clarify this inspection requirement, we have added a note to this final rule that defines that type of inspection.

Also, the inspection procedure included in paragraph (a) of AD 99-08-03, which is restated in paragraph (a) of this AD, contains several references to Boeing 737-600, -700, -800, -900 Airplane Maintenance Manual (AMM) Section 24-21-71/401, Figure 401. These references have been clarified in this final rule to refer specifically to relevant page numbers in AMM Section 24-21-71, Figure 401.

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

This is considered to be interim action. The FAA is considering further rulemaking to require accomplishment of the optional terminating action described in this AD. However, the planned compliance time for this action is sufficiently long so that notice and opportunity for prior public comment will be practicable.

There are approximately 153 Model 737-600, -700, and -800 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 56 airplanes of U.S. registry will be affected by this AD.

The actions that are currently required by AD 99-08-03 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $6,720, or $120 per airplane.

The new replacement required by this AD will take approximately 6 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the replacement required by this AD on U.S. operators is estimated to be $20,160, or $360 per airplane, per replacement cycle.

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

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

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

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 Model 737-100, -200, -300, -400, and -500 series airplanes; and Model 747, 757, 767, and 777 series airplanes; was published in the Federal Register on April 20, 2001 (66 FR 20218). That action proposed to require replacing the rudder pedal pushrod fasteners for both the captain's and first officer's pedal assemblies with new, improved fasteners.

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

One commenter supports the proposed rule; a second commenter states that it has no technical objection and intends to accomplish the proposed actions; and a third commenter states no objection to the proposed rule.

Two commenters request that the FAA revise Table 2 of the proposed AD to refer to Boeing Service Bulletin 767-27A0159, Revision 1, dated April 5, 2001, as an acceptable source of service information for the actions in paragraph (a) of the proposed AD. (The proposed AD refers to the original issue of Boeing Alert Service Bulletin 767-27A0159, dated June 10, 1999, as an acceptable source of service information for accomplishment of the actions in paragraph (a) of the proposed rule on affected Model 767 series airplanes.) One of the commenters also requests that we add a new note similar to Note 2 to cover incorporation of Boeing Service Bulletin 767-27A0159, Revision 1, as acceptable for compliance with the proposed AD.

We concur with the commenters' request to reference Boeing Service Bulletin 767-27A0159, Revision 1, in Table 2 of this AD and have revised Table 2 accordingly. Since we are making this change, we find that there is no need to add a new note similar to Note 2 of this AD to the final rule as one of the commenters suggested.

One commenter also asks us to revise Table 1 under the applicability statement of the proposed AD to refer to Boeing Alert Service Bulletin 737-27A1214, dated April 8, 1999, and Boeing Service Bulletin 767-27A0159, Revision 1. (Table 1 of the proposed AD lists Boeing Service Bulletin 737-27A1214, Revision 1, dated July 1, 1999, as the applicable service bulletin listing affected Model 737-100, -200, -300, -400, and “500 series airplanes; and the original issue of Boeing Alert Service Bulletin 767-27A0159, as the applicable service bulletin listing affected Model 767 series airplanes.) The same commenter also asks that we revise Table 2 of the proposed AD to refer to Boeing Alert Service Bulletin 737-27A1214, dated April 8, 1999. The commenter's rationale for these requests is that these service bulletins provide for the incorporation of the improved fasteners and compliance with the proposed action.

We do not concur that any change is necessary. Comparison of the effectivity listings of the original issue and Revision 1 of Boeing Service Bulletins 737-27A1214 and 767-27A0159 show that both issues of these service bulletins list the same affected airplane line numbers. Thus, we find that revising Table 1 as the commenter suggests would add no value and may be confusing for operators. No change to the final rule is necessary in this regard.

In addition, because Note 2 of this AD already states that the original issue of Boeing Alert Service Bulletin 737-27A1214 is acceptable for compliance with the applicable action in this AD, we find no need to also list that service bulletin in Table 2 of this AD. No change to this final rule is necessary in this regard.

One commenter suggests that the proposed AD should supersede AD 98-13-12 R1, amendment 39-10930 (63 FR 68165, December 10, 1998). The commenter states that the proposed actions in this AD remove the unsafe condition addressed by AD 98-13-12 R1. The commenter also notes that operators cannot comply with both AD 98-13-12 R1 and the proposed AD because this proposed AD requires rudder pedal pushrod fasteners to be torqued at a lower value than that required by AD 98-13-12 R1. The commenter is concerned that operators will need to request alternative methods of compliance for both of these ADs.

We do not concur with the request to supersede AD 98-13-12 R1. That AD requires a one-time inspection to detect discrepancies of the fasteners that connect the pushrods to the rudder pedal assemblies, and corrective actions, if necessary, on certain Boeing Model 737, 747, 757, 767, and 777 series airplanes. The actions in that AD are intended to prevent loss of rudder control, jamming of the rudder system, uncommanded movement of the rudder system, and consequent reduced controllability of the airplane. Corrective actions in that AD include tightening nuts and bolts to specified torque limits, installing missing fasteners, and replacing incorrectly installed fasteners with new fasteners, as applicable. This new AD requires replacement of existing rudder pedal pushrod fasteners for both the captain's and first officer's pedal assemblies with new, improved fasteners that use self-locking, castellated nuts and cotter pins through the bolts for nut retention. We consider the actions in this AD to provide an improved level of safety over that provided by the actions in AD 98-13-12 R1.

Since the compliance time for the actions required by AD 98-13-12 R1 (90 days after July 6, 1998, which is the effective date of AD 98-13-12, amendment 39-10600 (63 FR 33246, June 17, 1998)) has passed, most airplanes should already be in compliance with that AD. However, we find that accomplishment of the requirements of that AD is necessary in the event that an affected airplane is added to the U.S. Register. In that event, we find that accomplishment of paragraph (a) of this AD before the airplane is added to the U.S. Register is acceptable for compliance with AD 98-13-12 R1. We have added a new paragraph (b) to this AD (and reordered subsequent paragraphs) accordingly.

With regard to the commenter's perceived need for operators to apply for an alternative method of compliance, we note that, once the new, improved fasteners are installed according to this AD, the torque requirements for the old fasteners referenced in AD 98-13-12 R1 no longer apply. Further, the actions in this AD are not considered “terminating action” for AD 98-13-12 R1 because that AD did not contain any repetitive actions to terminate. No change to this final rule is necessary in this regard.

One commenter requests that we extend the compliance time for the proposed requirements from 18 to 36 months after the effective date of this AD. The commenter's rationale is that there have been very few reports of disconnection of the rudder pedal pushrod from the rudder pedal assembly, and all affected airplanes have previously been inspected per AD 98-13-12 R1.

We do not concur. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, as well as the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the small amount of time necessary to perform the inspection (one hour). We have also considered that the service bulletins have been available for some time, and many operators have already accomplished the required actions. In light of all of these factors, the FAA finds an 18-month compliance time for completing the required actions to be warranted, in that it represents an appropriate interval of time wherein airplanes will be able to continue to operate without compromising safety, and the majority of operators will be able to do the required work during a scheduled maintenance visit. No change to the final rule is necessary in this regard.

One commenter requests that the FAA revise the proposed rule to increase the cost estimate. The commenter states that it has compiled its own cost estimate for this inspection, based on actual direct costs incurred, and estimates the costs associated with the proposed AD as $125.76 for labor and $226.00 for materials per airplane, for a total of $351.76 per airplane.

We do not concur with the request. With regard to the number of work hours necessary to accomplish the actions in this AD, the cost impact information describes only the “direct” costs of the specific actions required by this AD. The number of work hours necessary to accomplish the required actions, specified as 1 work hour in the cost impact information below, was provided to the FAA by the manufacturer based on the best data available to date. This number represents the time necessary to perform only the actions actually required by this AD. The FAA recognizes that, in accomplishing the requirements of any AD, operators may incur “incidental” costs in addition to the “direct” costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate.

With regard to the cost of materials, the cost of parts necessary to accomplish the required actions, specified as approximately $75 in the cost impact information below, was provided to the FAA by the manufacturer based on the best data available to date. The commenter did not specify what materials its cost estimate included, so it is impossible for the FAA to know the reason for the difference between our cost estimate and the commenter's. No change to the final rule is necessary in this regard.

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

There are approximately 6,097 Model 737-100, -200, -300, -400, and -500 series airplanes; and Model 747, 757, 767, and 777 series airplanes; of the affected design in the worldwide fleet. The FAA estimates that 2,338 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $75 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $315,630, or $135 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 Commodity Futures Trading Commission today promulgates new rules 41.21 through 41.25 under 17 CFR part 41, pursuant to the CEA as amended by the Commodity Futures Modernization Act of 2000 (7 U.S.C. 1 et seq. , as amended by Appendix E of Pub. L. No. 106-554, 114 Stat. 2763).

On December 21, 2000, the CFMA was signed into law. Among other things, the CFMA lifted the ban on single stock and narrow-based stock index futures (“security futures”). 3 In addition, the CFMA established a framework for the joint regulation of security futures products 4 by the CFTC and the Securities and Exchange Commission (“SEC”). 5 Section 2(a)(1)(D) of the CEA and Section 6(h) of the Securities Exchange Act of 1934, as amended by the CFMA, provide that in order for a board of trade to list security futures products, the security futures products and the securities underlying the security futures products must meet a number of standards and conditions termed “listing standards.”

Security futures products may be traded on any board of trade that is designated as a contract market by the Commission pursuant to Section 5 of the CEA or that is registered with the Commission as a derivatives transaction execution facility (“DTEF”) pursuant to Section 5a of the CEA. In addition, Section 5f(a) of the CEA permits certain entities that are otherwise regulated by the SEC to be designated contract markets for the limited purpose of trading security futures products. Specifically, any board of trade that is registered with the SEC as a national securities exchange pursuant to Section 6(a) of the Exchange Act, is registered with the SEC as a national securities association pursuant to Section 15A(a) of the Exchange Act, or is an alternative trading system (“ATS”) as defined by Section 1a(1) of the CEA shall be a designated contract market in security futures products if certain conditions are met. 6

On July 20, 2001, the Commission published for comment proposed rules 41.21 through 41.25, 7 which addressed issues related to listing standards and established uniform requirements related to position limits, as well as provisions to minimize the potential for manipulation and disruption to the futures markets and underlying securities markets. 8 The proposed rules also related to the allowable types of securities underlying security futures products; settlement procedures; who may deal in security futures products; restrictions on dual trading; and rules governing surveillance, audit trails, trading halts, and margin requirements.

It should be noted that in addition to satisfying the listing standards of the CEA, security futures products must conform to listing standards that a national securities exchange or national securities association files with the SEC under Section 19(b) of the Exchange Act. 9 In addition, Section 6(h)(3)(C) of the Exchange Act imposes the additional requirement that the exchange or association's listing standards for security futures products must be no less restrictive than comparable listing standards for security options. On September 5, 2001, the SEC issued guidance for boards of trade as to the listing standards that would satisfy this requirement. 10

The Commission proposed rule 41.21 to address the statutory requirements for securities that may underlie security futures products. 11 Under the proposed rules, eligible securities must be securities registered pursuant to Section 12 of the Exchange Act and must be common stock or other equity securities as the Commission and the SEC deem appropriate. The proposed rules further provided that the securities must conform to any listing standards the designated contract market or registered DTEF files with the SEC.

The Commission proposed rule 41.22 to make it unlawful for a designated contract market or registered DTEF to list for trading or execution a security futures product unless it provided the Commission with a certification that the security futures product and the board of trade meet specified requirements set forth in the CEA. 12 Accordingly, proposed rule 41.22 would require designated contract markets and registered DTEFs to certify that they meet the requirements of Section 2(a)(1)(D)(i) of the CEA. That rule required certifications regarding the types of securities underlying security futures products; the payment and delivery of security futures products; who may trade security futures products; dual trading; anti-manipulation provisions; coordinated surveillance; audit trails; trading halts; and margin requirements.

With respect to the coordinated surveillance requirement, Section 2(a)(1)(D)(i)(VIII) of the CEA requires designated contract markets and registered DTEFs on which security futures products are traded to coordinate surveillance with markets that trade the underlying security or any related security, in order to detect manipulation and insider trading. This requirement was proposed to be implemented by paragraph (g) of proposed Section 41.22, which would require that a board of trade certify that it is a full member of the Intermarket Surveillance Group (the “ISG”). 13

Proposed rule 41.23 described the procedures for filing documents with the Commission before a designated contract market or registered DTEF could trade a security futures product. Specifically, proposed rule 41.23(a) described the documents that must be filed with the Commission, including documents and certifications required by proposed rules 41.22 and 41.25. Proposed rule 41.23(b) described the procedures for voluntary submission by designated contract markets and registered DTEFs for Commission approval of security futures products, as permitted by Section 5c(c)(2) of the CEA. The proposed rule noted that notice designated contract markets are not permitted to request Commission approval of security futures products, since they are exempt from the provisions of 5c of the CEA by virtue of Section 5f(b)(1)(D) of the CEA.

Proposed rule 41.24 required designated contract markets (including notice designated contract markets) and registered derivatives clearing organizations to file with the Commission a copy of any rule or rule amendment. Proposed paragraph (b) mandated that the procedures of paragraph (a) also apply to the self-certification of rules relating to security futures products by registered DTEFs, notwithstanding the provisions of rule 37.7. Proposed paragraph (c) allowed a designated contract market, registered DTEF, or registered derivatives clearing organization to submit rules for Commission approval, as permitted by Section 5c(c)(2) of the CEA. However, under the proposed rule, notice designated contract markets would not be permitted to request Commission approval of rules, since Section 5f of the CEA exempts these entities from Section 5c(c)(2) of the CEA.

Proposed rule 41.25 established requirements related to data reporting, trading halts, speculative position limits, and certain contract design features related to the settlement of security futures products. The Commission proposed paragraph (a)(1) of rule 41.25 to require designated contract markets and registered DTEFs to comply with Part 16 of the Commission's regulations regarding the daily reporting of market data. Paragraph (a)(2) was reserved for the establishment of rules providing for trading halts for security futures products, which the Commission and the SEC jointly proposed in a separate release. 14

Paragraph (a)(3) of proposed rule 41.25 required designated contract markets and registered DTEFs to adopt speculative position limits or position accountability rules for listed security futures products. The level of the position limit and whether a position limit is required would depend upon the trading activity and capitalization of the security or securities underlying the security futures product.

Paragraph (b) of proposed rule 41.25 established requirements for security futures products that are cash settled. Paragraph (b) was, in part, reserved for rules relating to acceptable cash settlement prices of security futures products. In this regard, in a separate release, the Commission and the SEC jointly proposed rules relating to the acceptable procedures for setting cash settlement prices for security futures products. 15 Proposed paragraph (c) of rule 41.25 established requirements related to security futures products that are settled by physical delivery of the underlying security or securities.

The Commission received four letters in response to its request for comment on the proposed rules. 16 Generally, the commenters supported the proposed rules, but objected to, or offered suggested modifications relating to, several individual provisions or requirements.

Except to the extent discussed below, the Commission will adopt the rules as proposed. The Commission has carefully considered the commenters' views on the proposed rules and has adopted several revisions to the proposed rules consistent with those comments.

AMEX suggested that the types of securities underlying security futures products should include exchange-traded funds (“EFTs”), trust issued receipts (“TIRs”), American Depositary Receipts (“ADRs”), and closed-end registered investment companies (“subject securities”). AMEX argued that these products are functionally comparable to common stock in the sense that they represent shares of securities that are registered under Section 12 of the Exchange Act.

The Commission and the SEC agree that ADRs are eligible securities for purposes of rule 41.21 under certain conditions. In this regard, on August 20, 2001, the Commission and the SEC issued a joint order modifying the requirements regarding securities underlying security futures products. In CEA and Section 6(h)(4)(A) of the Exchange Act, the Commissions modified the criteria in Section 2(a)(1)(D)(I) and (III) of the CEA and Sections 6(h)(3)(A) and (D) of the Exchange Act regarding the securities eligible for underlying security futures products. The order permits a depositary share, as defined in Exchange Act rule 12b-2, 17 to underlie a security future and be a component of a narrow-based security index, provided that two conditions are met: (1) The securities underlying the depositary share are registered pursuant to Section 12 of the Exchange Act and (2) the depositary share is registered under the Securities Act of 1933 on Form F-6.

Regarding ETFs, TIRs, and “subject securities,” the Commission and the SEC will consider separately the AMEX's request to allow these other securities to underlie security futures products. The Commission and the SEC will also consider what eligibility criteria and listing standards would be appropriate for such other underlying securities. The Commission and the SEC may seek public comment prior to issuing any orders regarding these securities.

Finally, the Commission has clarified the text of rule 41.21 to more clearly state that requirements for listing securities as security futures products relate to the security or securities that underlie security futures contracts.

CBOE noted that proposed rule 41.22(d), which lists the persons and entities who may trade or offer security futures products, does not encompass everyone who currently trades on the floor of CBOE; notably, some market makers. The proposed rule provided that only five categories of persons may trade security futures products, “except to the extent otherwise permitted under the Securities Exchange Act of 1934 and the rules and regulations thereunder * * *.” The rule was drafted in such a manner because Section 2(a)(1)(D)(i)(V) of the CEA explicitly provides that only futures commission merchants, introducing brokers, commodity trading advisors, commodity pool operators or associated persons subject to suitability rules comparable to those of a national securities association registered pursuant to Section 15A(a) of the Exchange Act may solicit, accept orders for, or otherwise deal in any transaction in or in connection with security futures products. By including the language “except to the extent otherwise permitted under the Securities Exchange Act of 1934 and the rules and regulations thereunder * * *” the Commission intended to encompass within the rule all persons and entities that are allowed to trade security futures products under the Exchange Act and its rules and regulations.

The Commission notes that brokers and dealers registered with the SEC may notice-register with the Commission to become futures commission merchants or introducing brokers. 181 In addition, it should be noted that associated persons of notice-registered futures commission merchants or introducing brokers are exempt from registration pursuant to Section 4k(5) of the CEA. These persons, however, are presumably permitted to trade security futures products under the Exchange Act, and therefore qualify for certification under rule 41.22(d).

Three commenters expressed concern about the provision in proposed rule 41.22(g) that would require boards of trade trading security futures products to be full members of the Intermarket Surveillance Group in order to meet the coordinated surveillance requirement of Section (2)(a)(1)(D)(i)(VIII) of the CEA. 19 The Intermarket Surveillance Group expressed its belief that requiring ISG membership in order to trade security futures products went beyond the requirements of the CFMA, exceeds the Commission's authority, and is potentially anti-competitive. The ISG noted that membership in the ISG is not automatic, and one current member could effectively veto membership by an applicant and thus could preclude trading of security futures products by such interested board of trade. The ISG expressed strong support for a rule that would ensure coordinated surveillance among markets and noted a willingness to work with the Commission in fostering effective surveillance coordination; however, it stated that rule 41.22(g) as proposed was an inappropriate means of achieving coordinated surveillance.

CME also expressed concern that not all boards of trade would be accepted as full members of the ISG, or that they may not be accepted quickly enough so that the boards of trade could commence trading security futures products when allowed to do so under the CFMA. CME suggested that the final rule include a grace period for boards of trade that have affiliate membership status and have applied for full membership and have satisfied the membership criteria applicable to national securities exchanges but have not yet been formally accepted.

AMEX indicated that the CFTC lacked the statutory authority to compel all boards of trade that wish to trade security futures products to be full members of the ISG. Furthermore, AMEX pointed out that a board of trade may only become a member of the ISG with the unanimous approval of all of its members. Thus, membership is not guaranteed, and in any case, the application process may be lengthy.

In light of the foregoing concerns regarding the full ISG membership requirement in proposed rule 41.22(g), the Commission has determined to defer consideration of this matter at this time. The final rule published today simply sets forth the requirement that a board of trade certify that it has in place procedures for coordinated surveillance. The Commission and the SEC are addressing the appropriate means of ensuring that this statutory requirement is satisfied, and the Commissions will consider whether it is appropriate to publish final rules related to the coordinated surveillance requirement of the CEA and the Exchange Act in a separate joint rulemaking related to trading halts and requirements for cash settlement. 20 All comments received by the Commission regarding membership in the ISG in response to the instant rulemaking will be considered by both agencies in the promulgation of the final joint release. Further, the Commission would welcome additional comment concerning membership in the ISG in response to the joint rule proposal.

CBOE raised a point applicable to proposed rules 41.22(g), (h), and (i)—namely, that the exception to the required certifications for the listing standards in these rules should only apply to alternative trading systems that are members of a national securities exchange or national securities association; and that the exception, by the terms of the CEA, should not apply to national securities exchanges or national securities associations themselves.

After considering this comment, the Commission has revised proposed rules 41.22(g), (h), and (i) to clarify what entities are exempt from making the certifications required by those rules, consistent with the language of the CEA and the Exchange Act. The final rules exempt only alternative trading systems from making these three certifications. Furthermore, the rules are clarified to exempt only those alternative trading systems that are members of either national security exchanges that have the required procedures in place, or national security associations that have the required procedures in place.

CBOE stated that proposed rule 41.22(i) should be clarified to explain whether the circuit breakers already in place on boards of trade are sufficient to satisfy the proposed rules regarding trading halts. The Commission notes that proposed rule 41.25(a)(2) was reserved to set forth requirements regarding trading halts. As with requirements related to cash settlement procedures for security futures products, proposed rules related to trading halt requirements were set forth in a separate joint rulemaking by the Commission and the SEC. 21 This CBOE comment will be addressed by the Commission and the SEC in promulgating those final rules.

AMEX suggested that notice designated contract markets (as opposed to designated contract markets and registered DTEFs) should be exempt from the daily reporting requirements of proposed 41.25(a) if the notice designated contract market files comparable information with the SEC. The Commission routinely collects the information required by part 16 of the regulations from all futures exchanges, and it intends to do so for all exchanges trading security futures products. The Commission is unaware of any current or planned daily data collection by the Securities and Exchange Commission that is comparable to the data specified in Part 16. However, the Commission's market surveillance staff will consider requests by an exchange seeking relief from pertinent parts of these reporting requirements for which data already are available to the Commission or are not useful to the Commission's surveillance program.

Three commenters commented on the proposed rules regarding the requirements for speculative position limits or position accountability. Two commenters noted that the proposed position limit provisions differ somewhat from the limits imposed on security and securities index options. 22 Differences cited include the specification of limits on a net, rather than a gross, position basis; the establishment of numerical limit levels that differ from those imposed on security and securities index options; and the fact that the proposed limits would apply only during the last five days of trading.

CME suggested that the Commission adopt a position accountability standard for all security futures products and not require that speculative limits be imposed for contracts on less liquid securities, as specified in the proposed rules. CBOE and AMEX did not object to the proposed speculative position limit provisions, but suggested that the Commission coordinate with the SEC so that speculative position limit rules for security and securities index futures products are the same as those applicable for security and securities index options. Barring that, these two commenters recommended that the Commission adopt position limit provisions that more closely resemble existing limits on option index options. In addition, CME and AMEX asked that the term “least liquid” be clarified in connection with applying speculative position limits for narrow-based stock indexes, and that this requirement be linked to the average daily trading volume of the average security in an index. Finally, CME recommended that the “six months” of calculations specified in the proposed rules should be made no more frequently than once a month.

After careful consideration of the comments, the Commission is adopting the speculative limit provisions as set forth in the proposed rules, with two modifications. In this regard, the Commission is modifying proposed rule 41.25(a)(3) by adding a new paragraph (iv) to clarify how “average daily trading volume” is to be calculated in determining whether speculative position limits are required and if so, the level that is applicable. These changes require calculations to be made monthly and establish procedures for implementing new levels when required, consistent with the suggestions of CME and AMEX. Further, for clarification, the term “least liquid security” in rule 41.25(a)(3)(ii) has been changed to the security with the lowest average daily trading volume.

In regard to CME's suggestion that the Commission adopt a position accountability standard for all security futures products, the Commission continues to believe that speculative position limits are appropriate for contracts based on securities that are less liquid or less highly capitalized. Allowing position accountability only for contracts that overlie the most liquid and highly capitalized securities is consistent with the Commission's surveillance experience and its long-standing approach regarding position accountability. Contracts based on less liquid and lower capitalized securities are more susceptible to manipulation or price distortions, and thus, the Commission believes that speculative position limits are appropriate measures to minimize the potential for these abuses.

In regard to the commenters' observations about differences in the proposed security futures product speculative position limits relative to existing security and securities index options limits, the Commission notes that the provisions are consistent with the Commission's customary approach for all other futures markets. As with other markets, the Commission believes that the speculative position limit and position accountability provisions set forth in the proposal are necessary to effectively oversee the markets and are consistent with the obligation in Section 2(a)(1)(D)(i)(VII) of the CEA that a designated contract market or registered DTEF maintain procedures to prevent manipulation of the price of the security futures product and the underlying security or securities.

As the Commission noted in the proposed rulemaking, the Commission's proposed position limit levels were set at levels that are generally comparable but not identical to the limits that currently apply to options on individual securities. The differences mainly reflect certain provisions adopted for commodity futures contracts that reflect the special characteristics of those markets. In this regard, the proposed position limit requirements for security futures differ from individual security option position limit rules in that the limits would apply only to net positions in an expiring security futures contract during its five last trading days. The Commission believes that this provision is appropriate since, consistent with its experience in conducting surveillance of other futures markets, it is during the time period near contract expiration that the potential for manipulation based on an extraordinarily large net futures position would most likely occur.

The Commission also believes that position accountability is appropriate for contracts on highly liquid and capitalized securities. In this regard, for security futures contracts based on a security that has an average daily trading volume greater than 20 million shares, the Commission believes that the threat of manipulation is sufficiently reduced such that an exchange could substitute a position accountability rule in lieu of a fixed position limit. Under such a rule, a trader holding a position in a security future that exceeded a threshold level determined by the exchange (e.g., no more than 22,500 contracts of 100 shares) would agree to provide information to the exchange regarding that position and consent to halt increasing the position if requested by the exchange.

CBOE stated that the cash settlement price for security futures products should be based on the underlying securities' opening price. Proposed rule 41.25(b) provided that, “For cash-settled security futures products, the cash-settlement price must be reliable and acceptable, be reflective of prices in the underlying securities market and be not readily susceptible to manipulation.” Part of proposed rule 41.25(b) was reserved for specific rules regarding acceptable practices for the calculation of cash settlement prices; text will be added to paragraph (b) in a future final rule. In a separate rulemaking issued jointly with the SEC, the Commission proposed that cash settlement be based on opening prices, consistent with the CBOE comment. 23 Accordingly, the Commission and the SEC will address CBOE's comment in the final rulemaking for that proposal. The Commission notes that one line of text has been removed from proposed rule 41.25(b), due to changes made to the text of that proposed rule in the joint rulemaking. This change is not substantive.

CBOE requested clarification as to whether the proposed rules applied to all boards of trade, including those that are notice-registered with the Commission. The Commission recently issued final rules regarding notice procedures for national securities exchanges, national securities associations, and alternative trading systems to become a designated contract market in security futures products. 24 In accordance with those rules and with Section 5f of the CEA, any board of trade that registers with the Commission as a notice designated contract market is, by definition, a designated contract market. Hence, the rules adopted today apply to designated contract markets under Section 5 of the CEA, registered DTEFs under Section 5a of the CEA, and notice designated contract markets under Section 5f of the CEA. It should be noted, however, that notice designated contract markets are exempt from certain provisions of the CEA in accordance with Section 5f(b)(1) of the CEA. The final rules, therefore, apply to all boards of trade that trade security futures products, except where otherwise explicitly noted in the rules.

The Administrative Procedure Act (the “APA”) generally requires that rules promulgated by an agency not be made effective less than thirty days after publication, except for, among other things, instances where the agency finds good cause to make a rule effective sooner, and has published that finding together with the rule. 25 Pursuant to the CFMA, beginning on August 21, 2001, eligible contract participants may trade security futures products on a principal-to-principal basis. The rules being published today affect the products that eligible contract participants may trade on a designated contract market or registered DTEF. The CFTC believes good cause exists for the rules to become effective immediately, so that boards of trade can list security futures products for trading by eligible contract participants, as contemplated by the CFMA. Furthermore, to the extent that these rules have been promulgated in substantially the same form as the proposed rules, any affected boards of trade are already familiar with the rules. Therefore, the Commission concludes that there is good cause for making these rules effective immediately upon publication.

Section 15 of the CEA requires the Commission to consider the costs and benefits of its action before issuing a new regulation. 26 The Commission understands that, by its terms, Section 15 does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Nor does it require that each proposed rule be analyzed in isolation when that rule is a component of a larger package of rules or rule revisions. Rather, Section 15 simply requires the Commission to “consider the costs and benefits” of its action.

Section 15 further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas of concern and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the CEA.

These rules constitute one part of a package of related rule provisions. The rules provide guidance and establish procedures for trading facilities to comply with governing laws related to security futures products. The Commission considered the costs and benefits of these rules, in light of the specific areas of concern identified in Section 15. 27 The rules should have no effect, from the standpoint of imposing costs or creating benefits, on the financial integrity or price discovery function of the futures and options markets or on the risk management practices of trading facilities or others. The rules also should have no material effect on the protection of market participants and the public and should not impact the efficiency and competition of the markets.

The Commission solicited comments about its consideration of these costs and benefits. 28 The Commission received no comments. Accordingly, the Commission has determined to adopt the regulations discussed above. Changes made to the proposed rules as a result of the comments do not affect the Commission's consideration of the costs and benefits of this rulemaking.

The Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501 et seq. , imposes certain requirements on federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. This rulemaking contains information collection requirements within the meaning of the PRA. The Commission submitted a copy of this part to the Office of Management and Budget (OMB) for its review in accordance with 44 U.S.C. 3507(d).

Collection of Information: Part 41, Relating to Security Futures Products, OMB Control Number 3038-0059.

No comments were received in response to the Commission's invitation in the notice of proposed rulemaking to comment on any paperwork burden associated with these rules. 29 See 44 U.S.C. 3507(d)(2).

Copies of the information collection submission to OMB are available from the Commission from the CFTC Clearance Officer, 1155 21st Street, NW, Washington, DC 20581, (202) 418-5160.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq. , requires federal agencies, in promulgating rules, to consider the impact of those rules on small entities. The rules adopted herein would affect contract markets, registered DTEFs, and derivatives clearing organizations. The Commission previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its rules on small entities in accordance with the RFA. In its previous determinations, the Commission concluded that contract markets, registered derivatives trading execution facilities, and derivatives clearing organizations are not small entities for the purpose of the RFA. 30 In the proposed rulemaking, the Chairman certified that these rules would not have a significant economic impact on a substantial number of small entities. 31 The Commission invited comment on this determination, but received no comments.

The Commission has the authority to propose these rules pursuant to Sections 1a, 2(a)(1)(D), and 5c(c) of the CEA, 7 U.S.C. 1a, 2(a)(1)(D), and 7a-2(c).

The Coast Guard published a notice of proposed rulemaking (NPRM) to establish requirements for approval, certification, installation, and performance of navigation lights on vessels less than 20 meters in length in the Federal Register on September 7, 1978 (43 FR 39946), and a supplemental notice on December 29, 1980 (45 FR 85468). It published a notice withdrawing the proposed rulemaking in the Federal Register on January 7, 1982 (47 FR 826). The proposed rule was withdrawn because a newly established voluntary standard and Coast Guard enforcement policies were deemed sufficient.

On October 9, 1997, the Coast Guard published in the Federal Register (62 FR 52673) a request for comments on whether navigation lights on uninspected commercial vessels and recreational vessels need to be regulated. We received 34 comments. On August 4, 2000, we published a notice of proposed rulemaking (NPRM) entitled Certification of Navigation Lights for Uninspected Commercial Vessels and Recreational Vessels in the Federal Register (65 FR 47936). We received 11 comments on the proposed rule. No public hearing was requested and none was held.

The rule will direct manufacturers of uninspected commercial vessels and recreational vessels to install only navigation lights certified and labeled as meeting the technical requirements of the Navigation Rules. It will standardize the navigation light requirement for uninspected commercial vessels and recreational vessels with the requirement for inspected commercial vessels. This action is consistent with the treatment for all other items of safety equipment.

Previously, only lights specifically manufactured for inspected commercial vessels were regulated. These regulations appear in Title 46 CFR subchapter J-Electrical Engineering, and they state in part that each light must “be certified by an independent laboratory to the requirements of [Underwriters Laboratories, Inc. (UL)] 1104 or an equivalent standard” and be so labeled. The “independent laboratory” must be recognized by the Coast Guard as bonafide and have been placed on a list, which is available from G-MSE-3 at U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001.

Rulemakings to establish regulatory controls of navigation lights on uninspected commercial vessels and recreational vessels were proposed in September 1978 and December 1980. They were withdrawn in January 1982 because a newly established voluntary standard and Coast Guard enforcement policies were deemed sufficient to eliminate the need for the regulation. However, by 1997, several entities concerned with recreational boating safety were calling for regulations.

Before April 1997, a manufacturer of navigation lights for uninspected commercial vessel and recreational vessels could voluntarily apply for a “Letter of Acceptance” from the U.S. Coast Guard for its light models. The Coast Guard would compare a laboratory report for each model sent by the manufacturer with the technical requirements of the International and Inland Navigation Rules (together referred to as the “Navigation Rules”). If the reported data indicated that the light met the requirements of the Navigation Rules, the Coast Guard would grant a “Letter of Acceptance,” allowing the manufacturer to label the light as “U.S. Coast Guard Accepted.” The public often interpreted the acceptance label as meaning that a light was “U.S. Coast Guard Approved.”

To eliminate the confusion, the Coast Guard stopped issuing Letters of Acceptance in April 1997. Consequently, vessel manufacturers, owners, surveyors, vessel inspectors, and boarding officials could rely only on a statement from the navigation light manufacturer that a model of light complied with the technical requirements of the Navigation Rules.

In 1997 the National Boating Safety Advisory Council (NBSAC)—representing operators and manufacturers of recreational vessels, State boating officials, and national boating organization—and the National Association of State Boating Law Administrators (NASBLA) passed resolutions asking the Coast Guard to require that navigation lights installed on recreational vessels offered for sale to the public be certified. The Navigation Safety Advisory Council (NAVSAC) passed a similar resolution relating to uninspected commercial vessels. In the report, “Recreational Boat Collision Accident Research,” UL recommended that the Coast Guard take stronger measures to ensure that navigation lights installed in recreational vessels meet the requirements established by the Navigation Rules.

A request for comments on the proposed rulemaking was published in the Federal Register on October 9, 1997. State law-enforcement personnel, vessel owners, marine professionals (manufacturers and marine surveyors), standard-setting organizations, manufacturers of navigation lights, and a laboratory testing navigation lights submitted comments. Of the 34 respondents, 28 favored the rule. Some expressed concern about installing lights in vessels with bow-high cruising trim angles that tend to obstruct sidelight visibility. While it would not require certification of navigation light installations, the rule will require that the installed lights be certified as compliant with the visibility requirements established by the Navigation Rules. A complete discussion of these comments was included in the NPRM, which may be found in the docket at the locations listed under ADDRESSES .

In its response to the October 1997 request for comments, UL stated that during the past 20 years compliance with the Navigation Rules for navigation lights has steadily declined. UL stated that about half of the lights tested have failed to meet minimum performance requirements.

To address this decline in compliance, the rule requires that vessel manufacturers install only lights that are certified. The new requirement will provide evidence of compliance to vessel manufacturers, surveyors, owners, inspectors, and boarding officials. It includes the same requirements as those for navigation lights for inspected commercial vessels; however, the light test requirements are less stringent. It also aligns with the International Navigation Rule requirement (COLREGS) for “Approval” (33 CFR, subchapter D, Annex I.)

The rule does not apply to the replacement of existing navigation lights on vessels completed before the designated effective date.

Respondents to the NPRM published August 4, 2000, included State law-enforcement officials, a marine safety service, a tug operator, several tug and tow operation companies, and two waterways associations representing the towing industry. Of the nine respondents, four favored the rulemaking.

All opposing comments came from representatives of the towing industry. Some cited the expense of certifying barge mooring lights; however, barge mooring lights are outside the scope of this rule because they are not generally installed by the builder.

Other comments requested that commercial vessel lights be grandfathered. Although the NPRM did not specify that this rulemaking applied to only newly manufactured vessels, that was the original intent. This has been clarified in the final rule by adding an applicability section to the new subpart 25.10 in 46 CFR. We also added a definition section to the new subpart 25.10. Furthermore, only uninspected commercial vessels and recreational vessels are within the rule's scope, as inspected commercial vessels are covered in other regulations.

Another comment recommended that when non-certified lights need to be replaced that they be replaced with certified lights. The Coast Guard disagrees with this comment. A planned amendment to Navigation Rule 38 will grandfather all existing lights, whether installed or on the shelf, implying that original equipment may be replaced in kind.

Comments also expressed concern about bulb “monopolies” resulting from this rulemaking. The labeling requirements call for “identification of the bulb used in the compliance test.” Although “identification” will include bulb make along with specifications regarding wattage, rated voltage, and filament configuration, this rule does not preclude the use of any make bulb that allows the performance requirements of the light to be satisfied.

One towing company cited lack of enforcement of the Navigation Rules as the crux of the problem while another objected to using “pre-focus lamps” (lamps with screened lenses designed to meet the sector requirements) rather than “incandescent rough service lamps.” Neither of these comments are within the scope of this rule. However, the intent of this rulemaking is to discourage the use of non-compliant lights on uninspected commercial vessels and recreational vessels as a step in enforcing the Navigation Rules. A requirement for “approval,” or third-party certification, has always existed in the International Navigation Rules. The intent to establish a similar requirement in the Inland Rules is evidenced by Inland Rule, Annex I, 84.25 Approval, currently marked “reserved.” This rule satisfies that intent.

Additionally, the need for this rule is reflected in a memo from Marine Safety Office, New Orleans to the Executive Director, Navigation Safety Advisory Committee that details problems associated with lights noncompliant with the International Navigation Rules and the Inland Rules and includes accident examples implicating improper navigation lights. This memo has been placed in the docket for this rulemaking as supplemental information and may be viewed at the locations listed on the ADDRESSES section of this document.

Of those favoring the rulemaking, a comment from a State law-enforcement agency reported that a significant number of collisions occur during the hours of darkness or reduced visibility, and that not seeing the other vessel's navigation lights is commonly cited as the cause. The U.S. Coast Guard agrees with this comment and has placed a letter from the City of Fort Lauderdale and the U.S. Coast Guard's response in the docket for this rulemaking as supplemental information. The letter refers to a horrendous nighttime collision in November 1997, which prompted an accident record review that caused city officials to question the adequacy of the navigation lights.

One comment recommended a more stringent labeling requirement. The Coast Guard agrees and has amended the labeling requirement to read that the label must be permanent and indelible and that it be visible without removing or disassembling the light. Another comment favoring the rulemaking stated that UL 1104 is too stringent as a testing standard. The Coast Guard also agrees with this comment. ABYC A-16, the most basic standard, has been substituted for UL 1104.

The aforementioned comments, combined with those received from UL in response to our original request for comments on October 9, 1997, indicate substantial support for the rulemaking. The UL comments state that more than half of the lights for small craft, which are not regulated, do not comply with minimum Navigation Rule requirements, but most regulated lights, that is, those for commercial vessels, do.

The new rule will be placed in Title 33 CFR, Part 183, subpart M, and not subpart I. We noticed after publication of the NPRM that subpart I applies only to gasoline-powered vessels. To ensure that the regulation properly applies to all uninspected commercial and recreational vessels, as originally stated in the preamble to the NPRM (65 FR 47938), we are recodifying the regulation in a new subpart. This has required that we draft new applicability and definitions sections to be placed in subpart M. These additions do not change the rule.

This rule is not a ‘significant regulatory action’ under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed this rule under that Order. Since we expect the economic effect of this rule to be very minimal, a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is not necessary.

(1) Manufacturers of navigation lights will incur initial costs for laboratory tests to certify that their lights comply with Navigation Rules. This may result in a minor increase in the market price for certified lights. Navigation light manufacturers will pass these costs on to vessel manufacturers. In turn, the vessel manufacturers will charge consumers more. We conclude that these increases should be so small that their effect on vessel manufacturers and consumers will be negligible.

Most recreational vessel manufacturers install navigation lights on their vessels. We have discovered that eight types of lights are now on the market, and each light manufacturer may make multiple models of each type. Our survey of available lights determined that each manufacturer produces an average of 10 models for each type and introduces 3 new models a year. Certification will require that a representative light of each model pass a performance test before it is marketed. Specifically, we identified nine domestic manufacturers of lights that this rule might affect. To conduct a cost analysis involving these nine manufacturers we must allow a one-year delay in the effective date of this rule. The one-year delay will allow the navigation light manufacturers time to alter their products and procedures to meet certification requirements. Consequently, initial costs will not begin to incur until the year 2002, when the rule becomes effective. Given that 3 new models are introduced each year, we will set a period of 15 years over which the analysis of the impacts of this rule will span. For the first year, 2002, we have analyzed the cost of certifying currently available models. For the remaining fourteen years, 2003-2016, we analyze the cost of certifying new models.

An e-mail exchange between the Office of Boating Safety and a navigation light manufacturer regarding costs associated with this rule can be found in the docket for this rulemaking.

In conversations with UL and Imanna Laboratory, testing laboratories approved by the Coast Guard, we developed an estimate of $500 for a performance test of each model. Volume discounts for multiple model tests from these laboratories will decrease the cost of each model to $400. We can therefore calculate a partial cost of the rule as follows.

To account for the current value of benefits and costs in the future, we determined the present value of this cost to 2001 through discounting. The present value represents the expected value of any benefits or costs-one-time or recurring-discounted by the interest rate compounded over the period of analysis. The Office of Management and Budget requires that all Federal Agencies, including the Department of Transportation, use a standard discount rate of 7 percent, which we incorporate into our cost analysis. A partial calculation of the total cost of the rule is therefore the following:

($288,000)/(1.07)1 = $269,158.88 = Partial Cost 1

This figure is the one-time testing cost for the total of all existing models of lights occurring during the first year of the regulation. If a manufacturer decides to introduce a new model of light, that model will also have to be tested by an independent laboratory approved by the Coast Guard before it can be marketed. When calculating costs, we must also account for the three new models of lights that each manufacturer sends yearly to the market. In order to perform this calculation we sum the cost over the remaining 14 years using a discount rate of 7 percent through the following formula:

We know that the nine manufacturers of navigation lights introduce three new models each year with a testing cost of $400 per model. We can say that the cost associated with testing three new models each year can be calculated by inserting the number of manufacturers, number of models, and testing costs into the above equation,

The present value of the total testing over 15 years is therefore:

$269,158.88 + $88,272.00 = $357,430.88

(2) New labeling requirements for the certified lights will add to the cost of the regulation. Much of the verification will be printable on an insert with the package, or on a sticker (described in Title 33 CFR 183.810). This rule will not involve modification of the package to accommodate the labeling. Using estimates from labeling companies, we have determined that manufacturers will pay about $240 for 1,000 labels. Since the Notice of Proposal for Rulemaking, we have obtained a more accurate cost for labels and have revised our analysis to include $240 for labeling costs in the formula. When computing labeling costs, we make the following assumptions: each model will need 1000 labels, each of 9 manufacturers produces 10 models of each of 6 light types, and each manufacturer introduces 3 new models per year. We first compute the one-time cost of labeling for the 10 models of each type of light.

In computing the cost of labeling we must also include a one-time $45 plate charge for each model. This means that 10 × 9 × 8 × 45 = $32,400 must be added to $172,800 for obtaining $205,500 as the labeling cost for the existing ten models. The present value of this cost is $205,500/1.07 or $192,056.

The cost of labeling for the three new models of lights introduced can be computed as follows:

The total cost of labeling would therefore be $192,056 + 52,963 + 695.14 or $245,714.14. This represents Partial Cost 3. Finally we can say that the present value of the total cost of the rule is:

(1) Certification will place navigation lights under regulatory control comparable to that affecting all other items of mandatory safety equipment. This will result in a general improvement in reliability, quality, and effectiveness of domestic and imported lights available to domestic manufacturers of vessels.

(2) This rule will discourage the practice of installing lights, custom-made or other, that are not compliant with the Navigation Rules. Navigation lights are safety equipment with the designated purpose of preventing collisions. According to the 2000 Boating Accident Reporting Database (BARD) statistics collected by the U.S. Coast Guard, accidents due to collisions with another vessel account for 35 percent of all reported boating accidents occurring over the year. These collisions lead to fatalities and injuries as well as property damage. Consequently, fatalities and injuries due to a collision with another vessel comprise around 10 percent of all reported fatalities and 32 percent of all reported injuries arising from recreational boating accidents. These BARD statistics also indicate that accidents involving a collision with another vessel result in property damages amounting to $8,735,300. The intent of this regulation is to reduce these numbers and lessen the costs society pays in terms of property damage, lives lost, or injuries when collisions occur.

(3) Lack of compliance with rules for navigation lights has also led to recalls of certain recreational vessels. Under the Federal Boat Safety Act of 1971, the U.S. Coast Guard can declare non-complaint lights as “defective” once they are installed. Recreational boats with defective items are subject to recall completely at the vessel manufacturers' expense. According to U.S Coast Guard data on recalls, recreational vessels of 13 different makes have been recalled as a result of the navigation lights failing to comply with the Navigation Rules since 1990. This regulation would therefore minimize the recall cost burden placed on vessel manufacturers by assuring them that a light meets the Navigation Rules requirements before they begin installation.

(4) Certification will also facilitate exports to countries enforcing the requirement of the COLREGS for approval of navigation lights.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations independently owned and operated and not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. We identified nine manufacturers who could be affected by this rule. Four out of the nine manufacturers qualify as small businesses by the size standards of the Small Business Association (SBA). However, we observed that the four businesses we identified as small entities offer fewer models of each type of light than their larger competitors. These 4 manufacturers offer between 1 and 5 models of each type, which is well below the average of 10 models each. Therefore, we do not believe that they will bear a disproportionate amount of the burden of this rule. We have found that these four manufacturers have annual revenues of $2.5m-$5.0m; $5.0m-$10m; $10m-$20m; and $20m-$50m. The greatest possible cost for testing and labeling incurred by these four light manufacturers would be $18,000, or $685 (testing + labeling costs) × 6 light types × 5 models per type. In addition to this, if they each test at least two new models per year then they will have to bear an extra $1,280, or $685 × 2. A total of $19,200 is well below 5 percent of the revenue of even the smallest company, indicating that this regulation will have a negligible effect on revenues to these small businesses. We expect prices in the industry will remain stable allowing companies to competitively enter the industry. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking.

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

This rule would call for a new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520]. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the collections, a description of those who perform them, and an estimate of the total annual burden follow. The estimate covers the time for submitting a new model of light to the third-party certifier and for designing a label for each model of light.

The rule will impose a new burden of collection of information on manufacturers of navigational lights for uninspected commercial vessels and recreational vessels. Each manufacturer of the lights would incur a one-time burden of submitting paperwork to the third-party certifier and of designing labeling for each model of light.

This collection of information is necessary to accomplish the third-party certification and the labeling. The third-party certifier would use the information to document and test the models of lights. Once the model had passed performance testing, the manufacturer of the light would design and provide a label for its product so the consumer would know that the product was certified.

The collection of information would affect the current manufacturers of navigational lights for recreational and uninspected vessels. It would also affect any future manufacturers that may enter the market.

There are nine manufacturers of lights in the market. This collection of information will affect them all.

This collection would take place only when a manufacturer undertook to place a new light on the market.

We estimate that it would take one employee about one hour to prepare the paperwork to submit a light for performance tests. He or she would be an administrative assistant and, as such, would cost around $24 an hour. If each of these manufacturers submitted three new models of lights for testing each year, the burden for the submitted would be 27 hours and $648.

We also estimate that it would take one employee about one hour to update the labeling for each new model. He or she, too, would cost around $24 an hour. The burden for the labeling requirement would likewise be 27 hours and $648 if each of nine manufacturers submitted 3 new models for testing each year.

Using the above estimates, the total burden in hours would be 54 and the total cost would be $1,296.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 35)7(d), we have submitted a copy of this rule to the Office of Management and Budget (OMB) for its review of the collection of information. OMB has approved the collection. The section numbers are 33 CFR part 183 and 46 CFR 25. The corresponding approval number from OMB is OMB Control Number 2115-0645, which expires on September 9, 2003. You are not required to respond to a collection of information unless it displays a currently valid OMB Control Number.

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke , 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).) Because the States may not regulate within this category, preemption under Executive Order 13132 is not an issue.

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

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1. paragraph (34)(d), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A requirement for certification of navigation lights should not have any environmental impact. A Determination of Categorical Exclusion is available in the docket where indicated under ADDRESSES .

The fourth Yukon River drainage action was effective June 12, 2001, through August 11, 2001, for Districts 1, 2, and 3. The fifth Yukon River drainage action was effective June 13, 2001, through August 12, 2001, for District 4. The sixth Yukon River drainage action was effective June 19, 2001, through August 18, 2001, for the Coastal District; June 21, 2001, through August 18, 2001, for District 1; June 24, 2001, through August 18, 2001, for District 2; and June 27, 2001, through August 18, 2001, for District 3. The seventh Yukon River drainage action was effective June 22, 2001, through July 30, 2001, for District 5. The eighth Yukon River drainage action was effective June 26, 2001, through August 25, 2001, for Districts 1-4. The ninth Yukon River drainage action was effective June 28, 2001, through August 27, 2001, for District 1; July 1, 2001, through August 27, 2001, for District 2; and July 4, 2001, through August 18, 2001, for District 3. The tenth Yukon River drainage action was effective July 1, 2001, through August 30, 2001, for Subdistrict 4A and July 4, 2001, through August 30, 2001, for Subdistricts 4B and 4C. The eleventh Yukon River drainage action was effective July 1, 2001, through August 30, 2001, for Districts 1, 2, 3, and 4 and Subdistricts 5A, 5B, and 5C. The twelfth Yukon River drainage action was effective July 4, 2001, through September 2, 2001, for the Koyukuk River. The thirteenth Yukon River drainage action was effective July 5, 2001, through September 4, 2001, for District 1 and July 6, 2001, through September 4, 2001, for Districts 2 and 3. The fourteenth Yukon River drainage action was effective July 8, 2001, through September 6, 2001, for Subdistrict 4A and July 11, 2001, through September 6, 2001, for Subdistricts 4B and 4C. The fifteenth Yukon River drainage action was effective July 10, 2001, through September 8, 2001, for Subdistricts 5B and 5C. The sixteenth Yukon River drainage action was effective July 13, 2001, through September 11, 2001, for Subdistrict 5A and July 17, 2001, through September 11, 2001, for Subdistrict 5D. The seventeenth Yukon River drainage action was effective July 20, 2001, through September 18, 2001, for Districts 1, 2, and 3. The eighteenth Yukon River drainage action was effective July 20, 2001, through September 18, 2001, for Subdistrict 5A. The nineteenth Yukon River drainage action was effective July 29, 2001, through September 27, 2001, for District 4 including the Koyukuk River. The twentieth Yukon River drainage action was effective July 27, 2001, through July 30, 2001, for all Federal waters of the Yukon River drainage. The twenty-first Yukon River drainage action was effective August 2, 2001, through October 1, 2001, for Subdistrict 5D and August 3, 2001, through October 1, 2001, for Subdistricts 5A, 5B, and 5C. The twenty-second Yukon River drainage action was effective August 6, 2001, through October 5, 2001, for all Federal waters of the Yukon River drainage. The twenty-third Yukon River drainage action was effective August 6, 2001, through October 5, 2001, for Districts 1-3; August 7, 2001, through October 5, 2001, for Subdistricts 5B and 5C; and August 8, 2001, through October 5, 2001, for District 4. The twenty-fourth Yukon River drainage action was effective August 8, 2001, through October 7, 2001, for District 4; August 9, 2001, through October 7, 2001, for Subdistricts 5B and 5C and Districts 1-3. The twenty-fifth Yukon River drainage action was effective August 9, 2001, through October 9, 2001, for Subdistrict 5A. The twenty-sixth Yukon River drainage action was effective August 10, 2001, rescinding the twenty-second Yukon River action for Districts 1-6. The twenty-seventh Yukon River drainage action is effective August 20, 2001, through October 19, 2001, for Subdistrict 6A; and August 21, 2001, through October 19, 2001, for Subdistrict 5A.

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

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

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

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

It now appears that returns of chinook, summer, and fall chum salmon to the Yukon River in 2001 have been at or slightly larger than the record lows of 2000. Very low catches of chinook and chum salmon were reported by many subsistence fishermen in 2000. Chinook and summer chum salmon escapement monitoring projects in 2000 showed that the returns of these species were very weak throughout most of the Yukon River drainage. Federal and State Managers and most subsistence users in the region have had strong concerns that not enough chinook or summer chum salmon would reach their spawning grounds in 2001. There were similar concerns that subsistence needs in some areas would not be met.

At their January 2001 meeting, the BOF identified the Yukon River chinook and chum salmon as stocks of concern and for the first time implemented a reduced subsistence fishing schedule to decrease confusion among users, increase the quality of escapement, spread the harvest throughout the run, and spread subsistence opportunity among users. In addition, ADF&G has indicated that any commercial fishing periods were highly unlikely for the Yukon River and that they would close the sport fishery for chinook salmon if the runs were weak. The ADF&G biologists and U.S. Fish & Wildlife Service personnel conducted public meetings, produced information posters, and published news articles to let the local users know about concerns regarding the expected low salmon returns and advised them regarding the restrictions and closures to protect spawning escapement.

Overall, both the chinook and summer chum salmon runs were assessed to be low in abundance. Restrictions in fishing time were initially implemented in District 1 and moved upriver sequentially to conserve both chinook and summer chum salmon. When it was determined the summer chum salmon return would not meet a population size of 600,000 fish, gear restrictions were implemented in District 1 on July 5, and also implemented sequentially upriver, to prohibit directed summer chum salmon harvest.

The chinook salmon run now appears to be a little better than last year. The restricted subsistence fishing schedule successfully increased the quality of the escapement, spread the harvest throughout the run and spread subsistence harvest opportunity among users in the lower, middle and upper Yukon River. Subsistence salmon fishing time was restricted throughout the drainage to conserve chinook salmon. Subsistence catch reports have been variable with success rates ranging from very good to poor. It appears that most individuals who tried, were able to meet their subsistence needs for chinook salmon, while some individuals were unable to meet their needs for chum salmon.

Early in the fall chum salmon season, there was great concern that this stock would not attain the minimum escapement goal. The poor outlook predicting a weak fall chum salmon run was based on the performance of the this years summer chum run and the realization that the trend of poor salmon production could continue for this year's fall season. The initial evaluation of all available information for fall chum salmon indicated that this year's run would likely be less than the 350,000 fish minimum. Since this projection was near or below the established drainage-wide goal, the management plan dictates that no directed subsistence harvest of fall chum salmon would be allowed.

Subsistence fishing for whitefish, suckers and other non-salmon species was allowed 7 days per week wherever possible.

On May 10, 2001, in public forum and after hearing testimony, the Federal Subsistence Board adopted an emergency action closing the chinook and summer chum salmon fishery on all Federal waters in the Yukon River drainage for 60 days (the maximum amount of time allowed under 50 CFR 100.19(d) and 36 CFR 242.19(d)) from June 1, 2001, to July 30, 2001, to all users except those Federally-qualified subsistence users 2001 (66 FR 32750, June 18, 2001). (First action.)

The Board also suspended the chinook salmon fin-marking restriction for subsistence users since there was no commercial harvest that subsistence-caught fish could blend into. (Second action.)

On May 31, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in Districts 1-3 of the Yukon River drainage for the subsistence fisheries (66 FR 33642, June 25, 2001). In Districts 1-3 the take of salmon was closed except for two 36-hour periods each week. (Third action.)

On June 12, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated gillnet restrictions on Federal waters in Districts 1-3 of the Yukon River drainage for the subsistence fisheries. These restrictions to nets with 4-inch or less stretched measure mesh and 60 feet or less in length allowed subsistence users to continue to subsistence fish for non-salmon species while still conserving salmon. (Fourth action.)

On June 13, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in District 4 of the Yukon River drainage for the subsistence fisheries. In District 4, the take of salmon was closed except for two 48-hour periods each week. (Fifth action.)

On June 19, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in the Coastal District and Districts 1-3 of the Yukon River drainage for the subsistence fisheries. In the Coastal District, the take of salmon was closed except for one 96-hour period each week. In Districts 1-3 the take of salmon was closed except for two 24-hour periods each week. (Sixth action.)

On June 22, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in District 5 of the Yukon River drainage for the subsistence fisheries. In District 5A, the take of salmon is closed except for two 42-hour periods each week. In District 5B and 5C, the take of salmon was closed except for two 48-hour periods each week. (Seventh action.)

On June 26, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers extended the gillnet restrictions on Federal waters to District 4 of the Yukon River drainage for the subsistence fisheries. This restriction to nets with 4-inch or less stretched measure mesh and 60 feet or less in length allowed subsistence users to continue to subsistence fish for non-salmon species while still conserving salmon. (Eighth action.)

On June 28, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in Districts 1-3 of the Yukon River drainage for the subsistence fisheries. In Districts 1-3 the take of salmon was suspended for a single 24-hour period then returning to two 24-hour periods each week. (Ninth action.)

On July 1, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in District 4 of the Yukon River drainage for the subsistence fisheries. In District 4, the take of salmon was closed except for two 36-hour periods each week. (Tenth action.)

On July 1, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers extended the fishwheel and gillnet restrictions that were already in effect on Federal waters in Districts 1-4 to Subdistricts 5A, 5B, and 5C of the Yukon River drainage for the subsistence fisheries. This restriction to nets with 4-inch or less stretched measure mesh and 60 feet or less in length allowed subsistence users to continue to subsistence fish for non-salmon species while still conserving salmon. (Eleventh action.)

On July 4, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters on the Koyukuk River drainage of the Yukon River drainage for the subsistence fisheries. In that area, the take of salmon was closed except for two 48-hour periods each week. (Twelfth action.)

On July 5, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in Districts 1-3 of the Yukon River drainage for the subsistence fisheries. In Districts 1-3 the take of salmon was closed except for one 24-hour period each week and gillnets are restricted to mesh size 8 inches or larger. (Thirteenth action.)

On July 8, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers extended the fishwheel and gillnet restrictions on Federal waters to District 4, including the Koyukuk River drainage, of the Yukon River drainage for the subsistence fisheries. This restriction to nets with 4-inch or less stretched measure mesh and 60 feet or less in length seven days per week and nets with 8-inch or greater stretched measure mesh during salmon openings allowed subsistence users to continue to subsistence fish while still conserving chum salmon. (Fourteenth action.)

On July 10, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in District 5 of the Yukon River drainage for the subsistence fisheries. In Subdistricts 5B and 5C, the take of salmon was closed except for two 36-hour periods each week. (Fifteenth action.)

On July 13, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers initiated a set of closures on Federal waters in District 5 of the Yukon River drainage for the subsistence fisheries. In District 5A, the take of salmon was closed except for two 36-hour periods each week. In District 5D, the take of salmon was closed except for two 48-hour periods each week. Non-salmon gillnet restrictions were also extended to Subdistricts 5A and 5D during closed salmon fishing periods. (Sixteenth action.)

On July 20, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers closed all Federal waters in Districts 1-3 of the Yukon River drainage for the subsistence salmon fisheries in order to conserve fall-run chum salmon. (Seventeenth action.)

On July 20, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers relaxed restrictions on Federal waters in Subdistrict 5A of the Yukon River drainage for the subsistence fisheries. In Subdistrict 5A, the take of salmon was reopened for two 42-hour periods each week. (Eighteenth action.)

On July 29, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers closed all Federal waters in District 4, including the Koyukuk River drainage, of the Yukon River drainage for the subsistence salmon fisheries in order to conserve fall-run chum salmon. (Nineteenth action.)

On July 27, 2001, the Federal Subsistence Board, acting through the delegated field official, removed the restriction on the harvest of chinook salmon by non-Federally-qualified users on all Federal waters in the Yukon River drainage. This action was based on larger than expected chinook runs which met both the spawning escapement and subsistence user needs. (Twentieth action.)

On August 2, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers closed salmon fishing in all Federal waters in Subdistricts 5A, B, and C and liberalized salmon fishing in Subdistrict 5D of the Yukon River drainage in order to conserve fall-run chum salmon and still provide an opportunity to take chinook salmon. (Twenty-first action.)

On August 6, 2001, the Federal Subsistence Board, acting through the delegated field official closed fall-run chum salmon fishing to all non-Federally qualified users in all Federal waters of the Yukon River drainage in order to conserve fall-run chum salmon and yet provide a limited subsistence harvest opportunity. (Twenty-second action.)

On August 6, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers established a subsistence fishing schedule for Districts 1-4 and Subdistricts 5B and 5C of the Yukon River drainage in order to conserve fall-run chum salmon. (Twenty-third action.)

On August 8, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers increased the fishing periods in the subsistence fishing schedule for Districts 1-4 and Subdistricts 5B and 5C of the Yukon River drainage in order to provide greater harvest opportunities based on larger run projections. (Twenty-fourth action.)

On August 9, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers reinstated gillnet restrictions on Federal waters in Subdistrict 5A of the Yukon River drainage for the subsistence fisheries. This restriction to nets with 4-inch or less stretched measure mesh and 60 feet or less in length seven days per week allowed subsistence users to continue to subsistence fish while still conserving chum salmon. (Twenty-fifth action.)

On August 10, 2001, the Federal Subsistence Board, acting through the delegated field, removed the restriction on the harvest of chum salmon by non-Federally-qualified users on all Federal waters in the Yukon River drainage. This action was predicated on larger than expected chum runs which met both the spawning escapement and subsistence user needs. (Twenty-sixth action.)

On August 20, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers removed the gear restrictions for non-salmon species in Subdistricts 5A and 6A of the Yukon River drainage and opened those areas to the harvest of salmon. This action was predicated on continuing larger than expected chum runs which met both the spawning escapement and subsistence user needs. (Twenty-seventh action.)

On September 10, 2001, the Federal Subsistence Board, acting through the delegated field official and in concert with ADF&G managers modified the subsistence fishing schedule and required the use of liveboxes on fishwheels on Federal waters in Subdistrict 5A of the Yukon River drainage for the subsistence fisheries. This restriction allowed subsistence users to harvest coho salmon while while still conserving chum salmon. (Twenty-eighth action.)

These regulatory actions were necessary to assure the continued viability of the chinook and chum salmon runs and provide a long-term subsistence priority during a period of limited harvest opportunity. These reduced subsistence fishing schedules brought the Federal subsistence fishing regulations in line with the similar ADF&G action for unified management and minimized confusion under the dual management system.

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

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

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

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

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

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

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

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

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

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

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

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As these actions are not expected to significantly affect energy supply, distribution, or use, they are not significant energy actions and no Statement of Energy Effects is required.

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

When a postage meter, or other postage evidencing system, reaches the end of its useful life, it must be destroyed so as to eliminate potential misuse or fraud which could lead to loss of Postal Service revenue. To accomplish this objective, the Postal Service is publishing procedures for the destruction of meters.

In our June 12, 2001 (66 FR 31548) (FR Doc. 01-14612) rulemaking we approved Montana's Emergency Episode Avoidance Plan and Cascades County's Local Regulation Chapter 7, Open Burning. In the Administrative Requirements section of that rulemaking, on page 31549, third column, the paragraph that starts with “The Congressional Review Act * * *”, the following sentence should be added between the first and second sentence: “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 .”  1

In our June 18, 2001 (66 FR 32760) (FR Doc. 01-15142) rulemaking we partially approved and partially disapproved the East Helena Lead SIP. On page 32764, second and third columns, we inadvertently referenced the wrong date. At the bottom of the second column, paragraph starting with “We are disapproving * * *”, “June 21, 1996” should be replaced with “June 26, 1996.” In the third column, paragraph starting with “We are disapproving paragraphs 15 and 15 * * *”, “June 21, 1996” should be replaced with “June 26, 1996.”

Additionally, in the June 18, 2001 rulemaking, we partially disapproved provisions of the State's East Helena Lead SIP (see 66 FR at 32761 and 32764) and determined that the East Helena Pb nonattainment area had attained the Pb NAAQS (see 66 FR 32765). However, we failed to promulgate corresponding text in the Code of Federal Regulations. In this document we are promulgating changes to 40 CFR 52, subpart BB, specifically § 52.1384 (Emission control regulations) to correspond to the partially disapproved plan provisions and § 52.1375 (Control strategy: Lead) to correspond to the attainment determination.

Also, the East Helena Pb Plan partially approved on June 18, 2001 superseded a previously approved Pb Plan submitted on September 29, 1983. We are correcting the regulatory text (at § 52.1370(c)(51)) to indicate that the September 29, 1983 Pb Plan is superseded.

Finally, in the June 18, 2001 rulemaking, on page 32766, third column, paragraph (5), the quotation mark ending the quotation was placed in the wrong location. We are correcting the regulatory text to read as follows:

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting incorrect administrative text and dates in the preamble of previous rulemakings, promulgating regulatory text for rules disapproved in a previous rulemaking and correcting regulatory text in a previous rulemaking. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. 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). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in the June 12, 2001, rule, approving Montana's Emergency Episode Avoidance Plan and Cascade County's Local Regulation Chapter 7, Open Burning, and in the June 18, 2001, rule, partially approving and partially disapproving the East Helena Lead SIP.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of December 3, 2001. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This correction to the identification of plan for Montana is not a “major rule” as defined by 5 U.S.C. 804(2).

On May 21, 2001, the Government of the District of Columbia, Department of Health submitted a revision to its SIP to address the requirements of the NO X SIP Call. The revision consists of the adoption of Chapter 10—Nitrogen Oxides Budget Trading Program. The information in this section of this document is organized as follows:

EPA is taking direct final action to approve the District of Columbia NO X Budget Trading Program submitted as a SIP revision on May 21, 2001. Upon approval of this SIP revision, both the sanctions clocks and EPA's FIP obligation are terminated.

On October 27, 1998 (63 FR 57356), EPA published a final rule entitled, “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the “ NO X SIP Call.” The NO X SIP Call requires 22 States and the District of Columbia to meet statewide NO X emission budgets during the five-month period between May 1 and October 1 in order to reduce the amount of ground level ozone that is transported across the eastern United States. EPA determined state-wide NO X emission budgets for each affected jurisdiction to be met by the year 2007. EPA identified NO X emission reductions, by source category, that could be achieved by using cost-effective measures. The source categories included were electric generating units (EGUs), non-electric generating units (non-EGUs), area sources, nonroad mobile sources and highway sources. However, the NO X SIP Call allowed states the flexibility to decide which source categories to regulate in order to meet the statewide budgets. In the NO X SIP Call rule's preamble, EPA suggested that imposing statewide NO X emissions caps on large fossil-fuel fired industrial boilers and electricity generating units would provide a highly cost effective means for States to meet their NO X budgets. In fact, the state-specific budgets were set assuming an emission rate of 0.15 pounds NO X per million British thermal units (lbs of NO X /MMBtu) at EGUs, multiplied by the projected heat input (MMBtu) from burning the quantity of fuel needed to meet the 2007 forecast for electricity demand. See 63 FR 57407, October 27, 1998. The calculation of the 2007 EGU emissions assumed that an emissions trading program would be part of an EGU control program. The NO X SIP Call state budgets also assumed, on average, a 30 percent NO X reduction from cement kilns, a 60 percent reduction from industrial boilers and combustion turbines, and a 90 percent reduction from internal combustion engines. The non-EGU control assumptions were applied at units where the heat input capacities were greater than 250 MMBtu per hour, or in cases where heat input data were not available or appropriate, at units with actual emissions greater than one ton per day.

To assist the states in their efforts to meet the SIP Call, the NO X SIP Call final rule included a model NO X allowance trading regulation, called “NO X Budget Trading Program for State Implementation Plans” (40 CFR part 96), that could be used by states to develop their regulations. The NO X SIP Call rulemaking explained that if states developed an allowance trading regulation consistent with the EPA model rule, they could participate in a regional allowance trading program that would be administered by EPA. See 63 FR 57458-57459, October 27, 1998.

EPA conducted several comment periods on various aspects of the NO X SIP Call emissions inventories. On March 2, 2000 (65 FR 11222), EPA published additional technical amendments to the NO X SIP Call. The March 2, 2000 final rulemaking established the inventories upon which the District of Columbia's final budget is based.

On March 3, 2000, the D.C. Circuit issued its decision on the NO X SIP Call ruling in favor of EPA on all of the major issues. Michigan v. EPA, 213 F.3d 663 (D.C. Cir. March 3, 2000). The Court denied petitioners' requests for rehearing or rehearing en banc on July 22, 2000. However, the Court ruled against EPA on four narrow issues. The Court remanded certain matters for further rulemaking by EPA. EPA expects to publish a proposal that addresses the remanded portion of the NO X SIP Call Rule in the near future. Any additional emissions reductions required as a result of a final rulemaking on that proposal will be reflected in the second phase portion (Phase II) of the NO X SIP Call rule. EPA does not anticipate that the District of Columbia will have any additional reductions requirements pursuant to the Phase II of the NO X SIP Call rule.

EPA's model NO X budget and allowance trading rule, 40 CFR part 96, sets forth a NO X emissions trading program for large EGUs and non-EGUs. A state can voluntarily choose to adopt EPA's model rule in order to allow sources within its borders to participate in regional allowance trading. The October 27, 1998 final rulemaking contains a full description of the EPA's model NO X budget trading program. See 63 FR 57514-57538 and 40 CFR part 96. In general, air emissions trading uses market forces to reduce the overall cost of compliance for pollution sources, such as power plants, while maintaining emission reductions and environmental benefits. One type of market-based program is an emissions budget and allowance trading program, commonly referred to as a “cap and trade” program.

In an emissions budget and allowance trading program, the state or EPA sets a regulatory limit, or emissions budget, in mass emissions from a specific group of sources. The budget limits the total number of allocated allowances during a particular control period. When the budget is set at a level lower than the current emissions, the effect is to reduce the total amount of emissions during the control period. After setting the budget, the state or EPA then assigns, or allocates, allowances to the participating entities up to the level of the budget. Each allowance authorizes the emission of a quantity of pollutant, e.g., one ton of airborne NO X . At the end of the control period, each source must demonstrate that its actual emissions during the control period were less than or equal to the number of available allowances it holds. Sources that reduce their emissions below their allocated allowance level may sell their extra allowances. Sources that emit more than the amount of their allocated allowance level may buy allowances from the sources with extra reductions. In this way, the budget is met in the most cost-effective manner.

The final NO X SIP Call rule included a model NO X budget trading program regulation at 40 CFR part 96. EPA used the model rule and 40 CFR part 51.121-22 to evaluate the District's NO X Budget Trading Program.

On May 21, 2001, the Government of the District of Columbia, Department of Health submitted a revision to its SIP to address the requirements of the NO X SIP Call.

The District's SIP revision to address the requirements of the NO X SIP Call consists of the adoption and submittal of Chapter 10—Nitrogen Oxides Budget Trading Program. The District of Columbia NO X Budget Trading Program establishes and requires a NO X allowance trading program for large electric generating and industrial units. Chapter 10—NO X Budget Trading Program establishes a NO X cap and allowance trading program with a budget of 233 tons of NO X for the ozone seasons of 2003 and beyond. The District has adopted, by reference, the requirements of the July 1, 2000 edition of 40 CFR part 96, subpart A (NO X Budget Trading Program General Provisions), subpart B (Authorized Account Representative for NO X Budget Sources), subpart C (Permits), subpart D (Compliance Certification), subpart E (NO X Allowance Allocations), subpart F (NO X Allowance Tracking System), Subpart G (NO X Allowance Transfers), Subpart H (Monitoring and Reporting), and subpart I (Individual Opt-ins) and 40 CFR part 97, Appendix A (Final Section 126 Rule: EGU Allocations, 2003-2007), Appendix B (Final Section 126 Rule: Non-EGU Allocations 2003-2007), Appendix C (Final Section 126 Rule: Trading Budget, 2003-2007), and Appendix D (Final Section 126 Rule: State Compliance Supplement Pool for the Section 126 Rule (Tons)). Therefore, pursuant to 40 CFR 51.121(p)(1), the District's SIP revision is automatically approved as satisfying its portion of NO X emission reductions.

Under the NO X Budget Trading Program, the District allocates NO X allowances to the EGUs and non-EGUs units that are affected by these requirements. Because the District's NO X Budget Trading Program is based upon EPA's model rule, the District of Columbia sources are allowed to participate in the interstate NO X allowance trading program that EPA will administer for the participating states. The NO X trading program applies to all fossil fuel fired EGUs with a nameplate capacity equal to or greater than 25 MW that sell any amount of electricity to the grid as well as any non-EGUs that have a heat input capacity equal to or greater than 250 MMBtu per hour. Each NO X allowance permits a source to emit one ton of NO X during the seasonal control period. NO X allowances may be bought or sold. Unused NO X allowances may also be banked for future use, with certain limitations. Source owners will monitor their NO X emissions by using systems that meet the requirements of 40 CFR part 75, subpart H, and report resulting data to EPA electronically. Each budget source complies with the program by demonstrating at the end of each control period that actual emissions do not exceed the amount of allowances held for that period. However, regardless of the number of allowances a source holds, it cannot emit at levels that would violate other federal or state limits, for example, reasonably available control technology (RACT), new source performance standards, or Title IV (the Federal Acid Rain program).

EPA has evaluated the District's May 21, 2001 SIP submittal and finds it approvable. The District of Columbia NO X Budget Trading Program is consistent with EPA's guidance and addresses the requirements of the NO X SIP Call. EPA finds the NO X control measures in the District's NO X Budget Trading Program approvable. The May 21, 2001 submittal will strengthen the District's SIP for reducing ground level ozone by providing NO X reductions beginning in 2003.

On December 26, 2000 (65 FR 81366), EPA made a finding that the District had failed to submit a SIP response to the NO X SIP Call, thus starting 18 and 24 month clocks for the mandatory imposition of sanctions and the obligation for EPA to promulgate a Federal Implementation Plan (FIP) with 24 months. The effective date of that finding was January 25, 2001. On

May 21, 2001, the District submitted a SIP revision to satisfy the NO X SIP Call. EPA found that SIP submission complete on June 8, 2001, thus, halting the sanctions clocks.

EPA is approving the District's NO X Budget Trading Program, submitted as a SIP revision on May 21, 2001. EPA finds that the District's NO X Budget Trading Program is fully approvable because it satisfies the requirements of the NO X SIP Call. Approval of this SIP revision fully terminates both the sanctions clocks and EPA's FIP obligation which officially started on January 25, 2001, the effective date of EPA's December 26, 2000 finding (FR 65 81366).

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 31, 2001 without further notice unless EPA receives adverse comment by December 3, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 31, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the District of Columbia NO X Budget Trading Program as satisfying the NO X SIP Call may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On August 8, 2001, EPA published a notice of proposed rulemaking (NPR) for the attainment determinations. The NPR proposed approval of the PM 10 attainment date determinations for Whitefish and Thompson Falls, Montana and Steamboat Springs, Colorado. Please refer to this proposed rulemaking for background information on Clean Air Act requirements for conducting attainment determinations. Throughout this document, wherever “we,” “us,” or “our” are used, we mean the Environmental Protection Agency (EPA).

Based on quality-assured data meeting the requirements of 40 CFR 50, appendix K, we are determining that Whitefish, Montana attained the PM 10 NAAQS as of December 31, 1999 and that Thompson Falls, Montana and Steamboat Springs, Colorado attained the PM 10 NAAQS as of December 31, 2000. This final action to determine attainment for Whitefish, Montana is based on monitored air quality data for the national ambient air quality standard (NAAQS) for PM 10 from the years 1997-99, and the actions for Thompson Falls, Montana and Steamboat Springs, Colorado are based on data from the years 1998-2000. With this final action, consistent with CAA section 188, the areas will remain moderate PM 10 nonattainment areas and avoid the additional planning requirements that apply to serious PM 10 nonattainment areas.

This action should not be confused with a redesignation to attainment under CAA section 107(d) because neither Montana nor Colorado have submitted a maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignation. The designation status in 40 CFR part 81 will remain moderate nonattainment for all three areas until such time as Montana and Colorado meet the CAA requirements for redesignations to attainment.

Whether an area has attained the PM 10 NAAQS is based exclusively upon measured air quality levels over the most recent and complete three calendar year period. See 40 CFR part 50 and 40 CFR part 50, appendix K. Since the attainment date for Whitefish was December 31, 1999, the three year period covers calendar years 1997, 1998, and 1999. Samples were collected on an every day schedule for Whitefish during this time period.

The PM 10 concentrations reported at the monitoring site showed one measured exceedance of the 24-hour PM 10 NAAQS in 1997 with a value of 178 μg/m 3  ; the expected exceedances for this year also calculated to 1. For 1998 and 1999, the number of exceedances and expected exceedances were 0.0. Thus, the three-year average was less than 1.0, which indicates that Whitefish attained the 24-hour PM 10 NAAQS as of December 31, 1999. The second highest value recorded between 1997 and 1999 at the Whitefish monitoring site was 138 μg/m 3 which is below the standard of 150 μg/m 3 .

Review of the annual standard for calendar years 1997, 1998 and 1999 reveals that Whitefish also attained the annual PM 10 NAAQS by December 31, 1999. There was no violation of the annual standard for the three year period from 1997 through 1999. The expected annual average value for the three year period was 29 μg/m 3 , which is below the standard of 50 μg/m 3 .

Since the attainment date for Thompson Falls was December 31, 2000, the three year period covers calendar years 1998, 1999, and 2000. The PM 10 concentrations reported at the two monitoring sites showed no measured exceedances of the 24-hour PM 10 NAAQS between 1998 and 2000. Review of the annual standard for calendar years 1998, 1999 and 2000 reveals that Thompson Falls also attained the annual PM 10 NAAQS by December 31, 2000. No monitoring sites showed a violation of the annual standard in the three year period from 1998 through 2000 and the expected annual average value for the three year period was 26 μg/m 3 , which is below the standard of 50 μg/m 3 . The sampling frequency at the Thompson Falls monitoring site during the first and fourth quarters of 1998 and 1999 was every two days and every sixth day for the second and third quarters. During 2000, the sampling frequency was every two days for the first quarter, every sixth day for second and third quarters and every third day for the fourth quarter.

As described above, the 1987 Guideline provides eligibility requirements and example situations in which data may be substituted. For Thompson Falls, there were two quarters during this three year attainment period (1998-2000), which had less than 75% data capture, but greater than 50% data capture and thus qualified for data substitution under our guidelines. The first quarter of 1999 had 12 values substituted, and used an 89 μg/m 3 value from February 25, 1997 for substitution, bringing the quarterly average to 39.3 μg/m 3 , and the 1999 annual average to 35.1 μg/m 3 . The third quarter of 2000 had 4 values substituted, and used a 75 μg/m 3 value from August 10, 2000 as the substitution value, bringing the quarterly average to 40.7 μg/m 3 , and the 2000 annual average to 20.5 μg/m 3 .

In 1999, the data recovery for Thompson Falls was incomplete due to extenuating circumstances at the monitoring site. The Courthouse on which the monitoring site had been located was being re-roofed and therefore, MDEQ was forced to find a new site on short notice, without enough time to set up a new monitoring site before the existing site was shut down. This forced MDEQ to miss all the monitoring days for the entire 3rd quarter of 1999. A new monitoring site was set up on the grounds of the local high school for the fourth quarter of 1999. The Region used 40 CFR part 50, appendix K and our April 1987 “Guideline on Exceptions to Data Requirements for Determining Attainment of Particulate Matter Standards” to address the missing data from 1999. The Region decided to substitute third quarter data from 1998 for 1999 because we believe that it is representative of what third quarter 1999 data would have looked like had the monitoring site continued to operate. We believe this is an acceptable method because the exceedances that Thompson Falls experienced in the early 1990's were during winter months, not during the third quarter of the year. In addition, the particulate problem in Thompson Falls is related to road dust and that problem has been resolved since street sweeping measures were adopted by Montana and implemented in 1998. Therefore, we don't expect that there would have been any recorded exceedances during the third quarter of 1999 had the monitor been operating.

Since MDEQ was forced to change monitoring sites in the middle of the three year period necessary for Thompson Falls to show attainment by the area's attainment date, we don't have complete data at any one monitoring site. However, we believe that combining the data from the two separate monitoring sites is acceptable in this situation. We also believe that the location of the replacement monitoring site within the extremely small town of Thompson Falls provides adequate characterization of the community's air. We believe that Thompson Falls' data meets our Guideline and rule requirements. Therefore, with the preceding actions concluded, we believe that the data indicates that Thompson Falls attained the 24-hour and annual PM 10 NAAQS as of December 31, 2000.

Since the attainment date for Steamboat Springs was December 31, 2000, the three year period covers calendar years 1998, 1999, and 2000. Steamboat Springs was operating on an every day sampling frequency during this time period. The PM 10 concentrations reported at the monitoring site showed no measured exceedances of the 24-hour PM 10 NAAQS between 1998 and 2000, which indicates Steamboat Springs attained the 24-hour PM 10 NAAQS as of December 31, 2000. The highest monitored 24-hour value between 1998 and 2000 was 148 μg/m 3 . Although this wasn't an exceedance of the NAAQS, we agreed with Colorado that this value should be excluded as a high wind event under our May 30, 1996 “Areas Affected by PM-10 Natural Events” policy. This data was flagged as a natural event in our Aerometric Information Retrieval System (AIRS) and Colorado submitted the proper documentation package to us certifying that this monitored value was due to unusually high winds in the area. Because of this, the highest applicable monitored 24-hour value during the three year period was 121 μg/m 3 which is below the standard of 150 μg/m 3 .

Review of the annual standard for calendar years 1998, 1999 and 2000 reveals that Steamboat Springs also attained the annual PM 10 NAAQS by December 31, 2000. Data collected at the monitoring site showed no violations of the annual standard in the three year period from 1998 through 2000. The expected annual average value for the three year period was 25 μg/m 3 , which is below the standard of 50 μg/m 3 .

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 final action merely determines that certain States have met federal requirements and imposes no requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule doesn't impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely makes attainment determinations, 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 “Protection of Children from Environmental Health Risks and Safety Risks” (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. However, in this context, there is no state request or submittal for these attainment determinations. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the 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 December 31, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The supplementary information is organized in the following order:

Section 169A of the Federal Clean Air Act (CAA or Act) requires states to protect visibility in mandatory Class I Federal areas where visibility is an important value. Mandatory Class I Federal areas are generally large national parks or wilderness areas where visibility is considered an important value. In Oregon, there are 12 mandatory Class I Federal areas, which include the Mount Hood Wilderness, the Mount Jefferson Wilderness, Three Sisters Wilderness, and Crater Lake National Park. A full listing of these mandatory Class I Federal areas can be found at 40 CFR 81.425, as well as at OAR 340-30-120. The Federal rules regulating visibility protection are set out in 40 CFR part 51, subpart P.

What are the main visibility protections provided for by the Federal rules? The Clean Air Act sets out a goal of preventing any future and remedying any existing impairment of visibility in mandatory Class I Federal areas (section 169(A)). Employing a close coordination process among the state and the Federal land managers (FLM), the Federal rules require monitoring of visibility in mandatory Class I Federal areas, as well as the development of a long-term strategy for making reasonable progress towards this national visibility goal. The visibility protection rules also provide for an assessment of visibility impacts from any new major stationary source or major modification that may affect mandatory Class I Federal areas. Additionally, in the event that a Federal land manager certifies impairment of visibility in a mandatory Class I Federal area that could be caused, or contributed to, by a major stationary facility, Best Available Retrofit Technology (BART) may be imposed on the facility.

The Federal visibility rules were modified in 1999 to include provisions for addressing regional haze. Regional haze is visibility impairment which results from emissions from many point and non-point sources. All of the states are currently in the process of developing revisions to their SIP to address the regional haze provisions. Therefore, the SIP submission under discussion in this action is not required to comply with the regional haze provisions of 40 CFR part 51, subpart P. Please see the Technical Support Document associated with this rule for additional discussion of the visibility requirements of the Federal rule.

On November 22, 1988, EPA approved visibility protection provisions into Oregon's State Implementation Plan (see 53 FR 47188). Oregon's visibility protection provisions are at Oregon Administrative Rule (OAR) 340-20-047, section 5.2. The visibility protection SIP provided three approaches to visibility protection: (1) A short-term strategy to be accomplished over a 5 year period to mitigate existing visibility impairment; (2) a long-range strategy to reduce fine particle emissions from agricultural field burning and forest prescribed burning over a 10-15 year period; and (3) on-going visibility protection afforded through the New Source Review permitting process. EPA approved the visibility SIP because it conformed to the federal visibility protection provisions outlined in 40 CFR 51.300, subpart P. On August 26, 1993, Oregon submitted changes to Oregon's regulations as proposed revisions to the visibility SIP.

The federal rules regulating visibility protection are set out in 40 CFR part 51, subpart P. Many of the federal requirements set out in subpart P are specific to SIPs that contain BART controls on a stationary source. Currently there are no major stationary sources in Oregon that could be required to adopt BART controls, therefore the BART requirements in subpart P are not applicable to this review of the Oregon SIP.

How does Oregon's SIP submission compare with the federal visibility requirements? The federal regulations require states to: (1) Develop long-term strategies for improving visibility over a 10-15 year period; (2) assess visibility impairment; (3) establish BART emission limits (if applicable); and (4) implement visibility protection provisions under the Prevention of Significant Deterioration program. See 40 CFR 51.302. The first, second and fourth requirements are discussed below. The third requirement is not applicable to Oregon because no Federal Land Manager has certified impairment of visibility in a Class I area due to a specific stationary source.

What are the proposed changes to the long-term strategy for visibility protection and how do they compare to the federal requirements? The 1993 submission builds on the programs established in the earlier visibility SIP. Oregon set out a comprehensive plan for all its Class I areas. Focusing on vegetative burning, the 1993 submission: (1) Expands the period during which restrictions to protect visibility apply by approximately 15 days; (2) incorporates the Class I area visibility protection provisions of the Union and Jefferson County field burning ordinances (Union County Ordinance #1992-4 passed May 6, 1992, and Jefferson County Ordinance #0-58-89 passed May 31, 1989); (3) reduces the annual acreage allowed for research and hardwood conversion burning from 1200 to 600 acres per year; and (4) revises the Willamette Valley field burning restriction emergency clause to allow hardship requests for visibility protection exemptions beyond August 10th of each year. In addition to these changes, the 1993 visibility SIP submission proposes to decrease the frequency of the formal review of the visibility program by the Department of Environmental Quality from 3 to 5 years. However, EPA will take no action on this provision because at this time Federal visibility protection regulations require the states to review and revise as necessary the visibility program every three years. See 40 CFR 51.306(c). Thus the three year review period remains in the SIP.

EPA has determined that the 1993 submission is a general strengthening of the SIP because it includes additional provisions protecting visibility, such as the expansion of the visibility protection period, and the addition of field burning ordinances for Jefferson and Union County.

Visibility is actively monitored in the Oregon Class I areas. Visibility in the Class I areas has significantly improved from the conditions in the 1980s. Please see the Technical Support Document associated with this rule for further discussion on this issue.

The 1993 submission evaluated monitoring results for the summers of 1984 to 1989 as part of the State's assessment of the effectiveness of its past controls and choice of future controls needed. Oregon concluded that from 23% to 31% of the visibility impairment cases documented within the Eagle Cap Wilderness are caused by agricultural field burning in the Grande Ronde Valley. Oregon also identified Jefferson County agricultural field burning as a source of impairment within the central Oregon Cascade wilderness areas. Based on this assessment, Oregon continues to focus on emissions from agricultural burning.

EPA believes that Oregon's monitoring system and the SIP's use of these data satisfy the federal requirements to monitor visibility, assess the progress achieved in remedying existing impairment of visibility, assess changes in visibility since the last report, and use these assessments in the development of a long-term strategy. See 40 CFR 51.302(c)(ii), 51.305, 51.306(c)(1), and 51.306(c)(3).

40 CFR 51.307 sets out the requirements for evaluating the visibility impacts from any new major stationary source or major modification that would be constructed in an area that is designated attainment or unclassified. The State of Oregon is fully delegated to carry out the Prevention of Significant Deterioration (PSD) program and complies with this section of the visibility provisions.

In this action, EPA is revising Oregon's State Implementation Plan to include OAR 340-20-047, section 5.2 that became effective August 11, 1992. EPA is taking no action on the provision in OAR 340-20-047, section 5.2.4.2 and section 5.2.5.1, that changes the review period of the visibility SIP from three to five years.

Oregon's Smoke Management Plan (SMP) is a program designed to manage smoke impacts from the burning of silvicultural wastes and the prescribed burning of forests. The Oregon SMP tries to balance essential forest land burning with preventing smoke from being carried to, or accumulating in, designated areas and other areas sensitive to smoke. The SMP establishes a permitting system for burning based on close cooperation of the Oregon Department of Forestry (ODF) and the Oregon Department of Environmental Quality (ODEQ). The SMP requires burners to obtain burning permits and to burn only under appropriate meteorological conditions.

Oregon's Smoke Management Plan is at OAR 629-43-043, Oregon Department of Forestry rules. On November 22, 1988, EPA incorporated the State of Oregon's smoke management program (OAR 629-43-043) and the “Operational Guidance for the Oregon Smoke Management Program” (Directive 1-4-1-601) into the SIP. See 53 FR 47188 (November 22, 1988). On August 26, 1993, Oregon submitted the Department of Environmental Quality Smoke Management Plan as amended and adopted as part of the Oregon Clean Air Act Implementation Plan (SIP) through Oregon Administrative Rule (OAR) 340-20-047, to EPA as a revision to the SMP portion of the Oregon SIP

Through this 1993 SIP submission, Oregon is modifying its Smoke Management Plan to strengthen visibility protection of the Class I areas, and to provide for additional protections around nonattainment areas for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10). EPA is approving Oregon's amendment to its Smoke Management Plan because it constitutes a general strengthening of the SIP.

One of the primary strengthening provisions of the Oregon Smoke Management Plan is the adoption of additional restrictions on burning through the establishment of a Special Protection Zone (SPZ) around each of the six PM-10 nonattainment areas in Oregon. When this rule was under development in 1992, there were six PM-10 nonattainment areas; Klamath Falls, Medford, Oakridge, Grants Pass, Eugene-Springfield, and La Grande. A new nonattainment area, Lakeview, was designated on October 25, 1993. See 40 CFR 81.338. The SMP does not identify a SPZ for Lakeview. Determined in part by geography, meteorology and location of forested areas, the 20 mile SPZ boundary around the six PM-10 nonattainment areas would contain additional restrictions on slash burning. In western Oregon, between November 15 and February 15, the slash burning restrictions are mandatory: (1) A prohibition on burning in the SPZ if the Department of Forestry forecaster determines weather conditions are likely to cause a smoke intrusion into the adjacent PM-10 nonattainment area; (2) monitoring of burns for at least 3 days and requirements to extinguish fires to prevent smoke from smoldering fires from affecting the nonattainment area; and (3) a prohibition on new ignitions in the SPZ when there is a residential wood combustion curtailment in the adjacent PM-10 nonattainment area between December 1 to February 15 (during “Red” woodburning curtailment). In eastern Oregon, these three restrictions would be voluntary for La Grande and Klamath Falls.

In the event that both a PM-10 nonattainment area fails to attain the National Ambient Air Quality Standard by the specified deadline, and a measured impact from slash smoke is determined to be a significant contributor to the PM-10 nonattainment, then additional smoke burning restrictions would take effect as contingency measures to the PM-10 nonattainment area plans.

The 1993 SIP revision revises the definition of slash to exclude brush generated by residential development land clearing. Instead, the burning of brush generated by residential development land clearing will be regulated by the Department of Environmental Quality's open burning rules.

For additional discussion of the previously described modifications and other changes to the smoke management plan proposed by the 1993 SIP submission, please see the Technical Support Document associated with this rule.

The visibility protection provisions at 40 CFR part 51, subpart P suggest that states consider Smoke Management Plans in developing long-term strategies for visibility protection. In September 1992, the Environmental Protection Agency published The Prescribed Burning Background Document and Technical Information Document for Best Available Control Measures to assist states in the development of Smoke Management Plans (EPA-450/2-92-003). These are a few examples of how the federal government widely acknowledges the benefits of smoke management plans. However, there are no specific federal requirements for states to develop and adopt Smoke Management Plans. Nonetheless, when compared with many of the smoke management plans adopted by other states, Oregon's Smoke Management Plan is one of the stronger plans.

In this action, EPA is revising Oregon's State Implementation Plan to include rules for the Oregon Department of Forestry. Specifically, OAR 629-24-301, that became effective on August 1, 1987 and the Smoke Management Plan at OAR 629-43-0043 that became effective on April 13, 1987, are approved. This action also approves Oregon Revised Statutes, ORS 477.515, last amended in 1971 into the SIP and modifies the Operational Guidance for the Oregon Smoke Management Program, Directive 1-4-1-601 that became effective on August 11, 1992.

On September 27, 1995, Oregon submitted a package of rules revising the Prevention of Significant Deterioration (PSD) program for Oregon. The package included several modifications to comply with existing federal requirements for the PSD program, as well as changes specific to the Oregon program. The 1995 submission sought to: replace Total Suspended Particulate increments with PM-10 increments; change the boundaries for the Class I areas; change the PSD baseline date, and amend the Smoke Management Plan.

On March 7, 1997, EPA approved the changes submitted in the September 1995 package with the exception of approving the amendments to the Smoke Management Plan (see 62 FR 10457). In this action, EPA is approving the Smoke Management Plan amendments.

The 1995 submission amends the Smoke Management Plan in the Blue Mountains in eastern Oregon. The Blue Mountains comprise the Umatilla, Wallowa-Whitman, Ochoco, and Malheur National Forests in northeastern Oregon, the forest lands of the Baker Resource Area, Vale Bureau of Land Management (BLM) District, Central Oregon Resource Area, Prineville BLM District, and the Three Rivers Resource Area and the Burns BLM District. The 1995 submission creates a mandatory smoke management program that requires Forest Service and BLM to track annual emissions from prescribed burning and wildfire to protect against a violation of the PSD increment requirements. The 1995 submission requires prescribed burning to be curtailed if the emission target is reached. Should unexpected increases in wildfires cause the target level to be exceeded, the annual prescribed burning limit would be adjusted downward to offset these increases.

The PSD baseline time period for the Blue Mountains is set using the period of 1980 to 1993, inclusive. The amendments to the Smoke Management Plan establishes a total baseline emissions from prescribed burning and wildfire. The total baseline emissions are estimated to be 17,500 tons of PM-10 per year. The Smoke Management Plan distributes this increment between a wildfire target level of 2,500 tons of PM-10 per year, and a prescribed burning emission limit of 15,000 tons per year. The 1995 submission requires wildfire emissions to be estimated, and adjustments to the prescribed burning schedule to be made in response to these estimates.

Further, the Forest Service and BLM are required to conduct prescribed burning under smoke dispersion conditions which minimize smoke impacts and protect air quality in northeast Oregon, southeast Washington, and western Idaho. An important component of this program is the establishment of real-time monitoring of smoke impacts through a smoke management network operated by the Forest Service, with technical assistance from the Oregon Department of Environmental Quality. Should burning be determined to be causing a measurable smoke impact, aggressive mop-up or other measures would be used to reduce the duration or intensity of the smoke impacts.

There are no specific federal requirements for Smoke Management Plans. The federal requirements for the Prevention of Significant Deterioration are outlined in 40 CFR 51.166. As noted above, EPA approved the revision of the baseline date for an area in northeastern Oregon in March 1997. EPA has reviewed the derivation of the 17,500 tons per year baseline and believes it is consistent with the Clean Air Act. EPA further believes that this Smoke Management Plan would improve Oregon's ability to try to control overall smoke impacts from forest fires. This is a creative approach to minimize air quality impacts from prescribed fires and wildfires based on strong cooperation among state air regulators, state land managers, and federal land managers.

In this action, EPA is revising Oregon's State Implementation Plan to include the “Oregon Smoke Management Plan, Appendix 5, Operational Guidance to the Oregon Smoke Management Program, Criteria for National Forest and BLM Lands in the Blue Mountains of NE Oregon (Volume 3, Section A1)” with the effective date of July 12, 1995.

Since the 1970's, Oregon has operated a field burning program to control particulate matter emissions from the burning of perennial and annual grass seed and cereal grain crops in the Willamette Valley. The Willamette Field Burning Rules are in OAR Chapter 340, Division 26. The open burning of all other agricultural waste material, including sanitizing perennial and annual grass seed crops by open burning in counties outside of the Willamette Valley is governed by OAR Chapter 340, Division 23, “Rules for Open Burning.” This action addresses changes to Division 26 only.

Over the years, Oregon has modified its field burning program. In 1985, EPA approved the field burning SIP. The field burning program was a permits and fee program. Burning permits were specific to location and might limit or define the methods a burner may use. The 1985 field burning SIP established a cap on the maximum acreage to be open burned annually in the Willamette Valley. This acreage cap was set at 250,000 acres annually. The 1985 field burning SIP included a record keeping provision that enabled the program to track acreage burned. Based on meteorological assessments of wind conditions and mixing heights, the field burning program had daily burning authorization criteria.

EPA last approved the propane flaming annual acreage cap and several definitions for the Oregon field burning program in 1997 (62 FR 8385, February 25, 1997). The approved modifications to Division 26 were those that were effective in Oregon on March 10, 1993. The last substantive EPA approval of Division 26 occurred in 1985 (50 FR 31368, August 2, 1985). On July 3, 1997, ODEQ submitted revisions to the field burning program as a revision to Chapter 340, Division 26, “Rules for Open Burning (Willamette Valley)'.

What are the significant changes proposed by the July 3, 1997, submission? This 1997 submission proposes to significantly revise the 1985 field burning SIP. Earlier in 1997, EPA adopted several housekeeping changes to the Willamette Valley field burning rule (see 62 FR 8385, February 25, 1997). The February 1997 action was not intended to address any substantive changes to the field burning program. In February 1997, EPA specifically approved the definitions for: “fire safety buffer zone,” “marginal day,” “open burning,” “propane flaming permit,” “released allocation,” and “stack burning permit.” EPA also approved a maximum acreage to be propane-flamed annually in the Willamette Valley.

The July 3, 1997, submission modifying the Oregon field burning rules establishes three types of burning: open field burning, propane flaming and stack or pile burning. The 1997 submission reduces the total acreage allowed to be open burned, establishes a separate acreage cap for propane flaming, exempts stack or pile burning from the field burning cap and changes the registration, permitting and fee structure for all these burns. The 1997 submission also adds two new sections: Sections 340-26-033 and 340-26-055 which regulate preparatory burning and stack or pile burning. This 1997 submission also repeals Section 340-26-025 which provided for Civil Penalties.

How are acreage limitations affected by the new submission? In the 1985 field burning SIP, Oregon established that the maximum acreage to be open burned annually would not exceed 250,000 acres. The 1985 SIP also set a daily burn limit of 46,934 acres per day. Propane flaming was not included under this acreage limitation. In supporting documentation on the July 3, 1997, SIP revision, provided to EPA by Oregon on December 22, 1999, Oregon asserts that stack or pile burning were not considered to be covered by this limitation, either. EPA disagrees. In reading the language used in the 1985 SIP, as well as the language adopted under the Fire Marshal Rules that were first promulgated in 1988, there was a consistent division only between field burning and propane flaming. “Stack or pile burning” was not considered to be a separate category. EPA believes that the 250,000 annual acreage limit covered both open field burning and stack or pile burning.

As noted earlier, the 1997 submission defines three different methods of burning: open field burning, propane flaming, and stack or pile burning. The 1997 submission treats each of these types of burns differently. One of the most aggressive forms of control in Oregon's field burning program is the significant decrease in the maximum acreage that can be open field burned annually. The maximum allowable acreage decreased from 140,000 (for 1992-3) to 120,000 (for 1994-5) to 100,000 (for 1996-7) to 40,000 for 1998 and thereafter. Maximum acreage of fields to be propane flamed annually is set at 75,000 acres. No specific acreage caps have been set for stack or pile burning, however, the fees for stack or pile burning incrementally increase annually to discourage this type of burning.

What is the effect of the acreage limitations proposed in the 1997 submission? Combining the limits for open burning and propane flaming, the maximum combined acreage to be burned annually is 140,000 acres. This is a decrease from the 250,000 annual limit on open burning established in the 1985 SIP. Stack and pile burning is not included in this annual cap.

As noted above, EPA believes that stack or pile burning was included in the 1985 SIP's annual limit of 250,000 acres. In 1999, Oregon estimated the amount of acreage treated by stack or pile burning fell from approximately 60,000 acres in 1988 to 30,000 acres in 1991, to 14,574 acres in 1992, to 8,588 acres in 1997. (See December 22, 1999 letter from Laurey Cook, ODEQ, to Claire Hong, EPA Region 10). EPA believes that these significant decreases in the amount of acreage stack or pile burned are likely to continue due to the conversion of agricultural lands to other uses, the fall in hay prices, and the increased cost of sanitizing the fields. Even if we were to use the historically much higher 1988 levels of stack or pile burning, the overall acreage that would be burned would still fall below the limits established in the 1985 SIP for annual limits.

In addition to the change in annual acreage limits, another change to the acreage limitations focused on acreage burned per day. Under the 1985 SIP, the daily cap on acres field burned was 46,934 acres. This cap was based on air quality dispersion modeling that indicated that burning this acreage would not result in a violation of the National Ambient Air Quality Standards or Prevention of Significant Deterioration increments. The 1997 submission would repeal this daily acreage cap. EPA believes that repealing this daily acreage limit would not result in a weakening of the SIP due to the significantly decreased acreage that can be burned over the year for all types of burning. Although not a direct comparison, the annual limit in the 1997 submission for open burning is lower than the 1985 daily cap on acres burned. Additionally, the 1997 submission adds acreage limits for steep terrain, training fires, and preparatory burns. When evaluated in total, EPA believes all these changes to acreage limits is a general strengthening of the SIP.

In reviewing the 1997 submission, EPA considers the impact of rule changes on air quality. Comparing the total acreage allowed to be burned under the 1985 SIP to the total acreage allowed to be burned under the 1997 submission is a rough indicator of what air quality impacts may be. However, there are factors in addition to decreased acreage that support the idea that this 1997 modification would result in better air quality. The 1997 submission encourages the use of stack or pile burning over open field burning. In general, stack or pile burning tends to emit less smoke than open field burning due to higher combustion rates because of the concentration of materials. While this correlation does not hold true if the stacks or piles are wet, it is likely that encouraging the use of stack or pile burning over open field burning would result in lower emissions. Oregon estimates that an acre of straw burned in the field emits sixty percent more particulate matter than an acre of straw removed and burned in a stack. When evaluated in total, EPA believes that the overall impact of changes to acreage limitations would be a strengthening of the SIP.

Two of the main changes between the 1985 SIP and the 1997 submission is the change in the treatment of propane flaming and the addition of stack or pile burning as a separate category of burning. In the 1985 SIP, propane flaming was exempt from rules OAR 340-26-010 through 340-26-015 and, therefore not subject to open field burning requirements related to registration, permits, fees, limitations, allocations and daily burning authorization criteria. The 1997 submission dramatically modifies the treatment of propane flaming. The 1997 submission prohibits individuals from burning in a manner contrary to the Department's conditions. Section OAR 340-26-010 (5), states that, “No person shall cause or allow open field burning, propane flaming, or stack or pile burning which is contrary to the Department's announced burning schedule specifying the times, locations and amounts of burning permitted, or to any other provision announced or set forth by the Department or this Division.” The 1997 submission would repeal the exemption of propane flaming from registration, permitting and other general controls established for field burning. This does not mean that propane flaming is treated in the exact same manner as field burning. It is not. Rather, propane flaming is more controlled under the 1997 rules than it was in the 1985 SIP.

Stack or pile burning's treatment under Division 26 is also clarified by the 1997 submission. The 1997 submission creates a new category of burning known as stack or pile burning. The 1997 submission does not include stack or pile burning in the annual acreage limitations established for field burning. As discussed earlier in this Federal Register notice, and in the TSD that accompanies this action, EPA believes that failing to include stack or pile burning in the annual acreage limits does not weaken the SIP because of the significant decrease in the acreage that can be burned under the annual cap.

The 1997 submission also proposes to change the treatment of stack or pile burning by exempting stack or pile burning from the registration process. Although Oregon would no longer separately register acres that would be stack or pile burned, Oregon would continue to permit stack or pile burning. Thus, Oregon would still be able to track the acres to be stack or pile burned through the permitting process. Oregon also proposes to clarify that stack or pile burning will be subject to the State Fire Marshal Rules that prohibit burning within 1/4 mile of major roadways, and that can impose additional conditions on burning. Stack and pile burning must be conducted with a valid permit, must follow established procedures of the Department, and is prohibited on any day, or at any time, if the Department has notified the State Fire Marshal that such burning is prohibited because of adverse meteorological or air quality conditions.

What is the overall impact of these changes to the treatment of stack or pile burning? Although stack or pile burning will no longer be registered, it continues to be permitted, thus allowing sufficient regulatory authority to control stack or pile burning. EPA believes the impact of these changes would not constitute a relaxation of the SIP.

The 1997 submission incorporates the Rules of the State Fire Marshal by reference into 340-26-001, 340-26-015, 340-26-033, 340-26-045, and 340-26-055. The rules of the State Fire Marshal, safety requirements for field burning and propane flaming, are at Oregon Administrative Rules 837-110-010 through 837-110-160. Adopting these rules by reference is intended to increase the degree of public safety by preventing unwanted wild fires and smoke from open field burning, propane flaming, and stack burning near highways and freeways. The State Fire Marshal rules establish a fire safety buffer zone around highways and roadways. The State Fire Marshal rules outline additional controls on the manner and timing of burns in these areas.

The 1997 submission repeals Section 340-26-025 entitled “Civil Penalties”. While SIP revisions are evaluated for enforceability, rules describing state enforcement authority and penalties are not appropriate for inclusion into the SIP to avoid potential conflict with EPA's independent authorities. Therefore, EPA is taking no action on these provisions of the Oregon rules.

Other rule changes include systematically referencing propane flaming and stack or pile burning to the rules to clarify which criteria apply to different types of burns. The “prohibition conditions” under daily burning authorization criteria are tightened and the acreage limitation for experimental burning are lowered from 5000 to 1000 acres. Several definitions have been added, and the definition for “grower allocation” has been modified to tighten the amount of acreage that could be allocated in the event that total registration as of April 1 exceeds the maximum acreage allowed to be open field burned or propane flamed annually.

Similar to smoke management plans, there are no federal requirements for field burning controls. How then does EPA evaluate the adequacy of these significant changes proposed by the 1997 submission? Section 193 of the Clean Air Act, entitled the “General Savings Clause” provides that, “no control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before the date of the enactment of the Clean Air Act Amendments of 1990 in an area which is a nonattainment area for any air pollutant, may be modified after such enactment in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.”

The pollutant of concern is PM-10 and the area of interest is the Willamette Valley, which contains several PM-10 nonattainment areas. The criteria for approval of these revisions is whether the 1997 submission would pose a relaxation of the controls that are in effect in the existing State Implementation Plan.

The majority of the changes proposed by the 1997 submission, such as the specific incorporation of the State Fire Marshal rules, strengthen the controls on field burning. The area most likely to be seen as a relaxation is the exemption of stack or pile burning from the annual acreage cap for field burning. However, as discussed above, EPA believes the impacts of this change are not a relaxation of the SIP.

In addition to reviewing the regulatory stringency of the 1997 submission compared to the 1985 SIP, it may be useful to evaluate the air quality in the Willamette Valley. The air quality data do not raise specific concerns about the contribution of field burning to the exceedances of the PM-10 standard. Please see the associated Technical Support Document for a fuller discussion.

In this action, EPA is revising the Oregon State Implementation Plan to include OAR Chapter 340, Division 26 effective May 31, 1994. Further, EPA is incorporating by reference the rules of the State Fire Marshal OAR 837-110-110 through 837-110-160, effective February 7, 1994.

Please note that since these SIP revisions were adopted by the state, other modifications to Oregon's rules may have been adopted by the Environmental Quality Commission and submitted to the EPA for approval (e.g. the rule recodification package). Approval of the SIP revisions discussed in this action does not rescind any local rule amendments that were subsequently filed and submitted.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001) This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 31, 2001 unless EPA receives adverse written comments by December 3, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 31, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

During EPA's review of a SIP revision involving Oregon's statutory authority, a problem was detected which affected the enforceability of point source permit limitations. EPA determined that, because the five-day advance notice provision required by ORS 468.126(1) (1991) bars civil penalties from being imposed for certain permit violations, ORS 468 fails to provide the adequate enforcement authority that a state must demonstrate to obtain SIP approval, as specified in section 110 of the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to provide such notice would preclude Federal approval of a section 110 SIP revision.

To correct the problem the Governor of Oregon signed into law new legislation amending ORS 468.126 on September 3, 1993. This amendment added paragraph ORS 468.126(2)(e) which provides that the five-day advance notice required by ORS 468.126(1) does not apply if the notice requirement will disqualify a state program from Federal approval or delegation. ODEQ responded to EPA's understanding of the application of ORS 468.126(2)(e) and agreed that, because Federal statutory requirements preclude the use of the five-day advance notice provision, no advance notice will be required for violations of SIP requirements contained in permits.

Another enforcement issue concerns Oregon's audit privilege and immunity law. Nothing in this action should be construed as making any determination or expressing any position regarding Oregon's Audit Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any approved provision in the SIP, including the revision at issue here. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any other Clean Air Act Program resulting from the effect of Oregon's audit privilege and immunity law. A state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities. EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by a state audit privilege or immunity law.

On November 9, 1998 and March 1, 2001, the Pennsylvania Department of Environmental Protection (PADEP) submitted a request on behalf of the Allegheny County Health Department (ACHD) for approval of a partial operating program pursuant to 40 CFR part 70 for Allegheny County (the County). The ACHD will be the permitting authority for the operating permit program. On December 6, 1999, EPA proposed approval of the County's partial operating permit program (64 FR 68066). The ACHD has subsequently revised its regulations. These revisions strengthen the ACHD's operating permitting program. In this final rulemaking, EPA is both withdrawing its previous proposal (64 FR 68066) and approving the County's part 70 operating permit program as submitted on November 9, 1998 and amended on March 1, 2001.

This section provides additional information on EPA's approval of the partial operating permit program by addressing the following questions:

The Clean Air Act Amendments of 1990 required all States to develop operating permit programs that meet established Federal criteria. When implementing the operating permit programs, the States require certain sources of air pollution to obtain permits that contain all of their applicable requirements under the Clean Air Act (CAA or the Act). The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of its applicable CAA requirements into a federally-enforceable document. By consolidating all of the applicable requirements for a given air pollution source into an operating permit, the source, the public, and the State environmental agency can more easily understand what CAA requirements apply and how compliance with those requirements is determined. Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the Act or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of “major” sources in Allegheny County include, but are not limited to, those that have the potential to emit 50 tons per year or more of volatile organic compounds; 100 tons per year or more of certain other criteria pollutants; those that emit 10 tons per year of any single hazardous air pollutant (HAP) specifically listed under the Act, or those that emit 25 tons per year or more of a combination of HAPs. In an area not meeting the national ambient air quality standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the area's nonattainment classification.

The approved Pennsylvania part 70 operating permit program currently applies state-wide. A partial program approval means that a geographic region of Pennsylvania, Allegheny County, will have a separate program. The term “partial” is a geographic reference. It is not a reference to the approval status of the ACHD's program.

The minimum program elements for an approvable operating permit program are those mandated by title V of the Act and in EPA's implementing regulations at CFR 40, part 70—“State Operating Permit Programs.” Title V required state and provided for local air pollution control agencies to develop operating permit programs and submit them to EPA for approval by November 15, 1993. Under title V, State and local air pollution control agencies that implement operating permit programs are called “permitting authorities.” EPA granted full approval of PADEP's operating permit program on August 26, 1996 (61 FR 39597). That program currently applies in Allegheny County. The ACHD has adopted and requested approval of a separate program, referred to as a partial program. The PADEP has submitted a formal request to EPA for approval of a part 70 operating permit program for Allegheny County. EPA is approving this partial program for Allegheny County.

The regulations for the Allegheny County part 70 permit program are found in the County's Air Pollution Control Regulations. Definitions for the air pollution control program are found in Part A of the regulations (2101.01 et seq.). A list of the County's definitions relevant to this rulemaking is included in the Technical Support Document (TSD) prepared by EPA in support of this rulemaking. Copies of that TSD may be obtained, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document. Part C of the County's regulations focuses on requirements for operating permits for all sources of air pollution. Part C is divided into two subparts. Subpart 1 includes requirements for all operating permits, including part 70 sources. Subpart 2 includes additional, and in some cases, more extensive, requirements for part 70 operating permit sources.

The County's program meets the minimum requirements of 40 CFR part 70. Several provisions differ from, but have been determined to be consistent with, 40 CFR part 70, in scope and stringency. These areas are highlighted below:

The legal opinion submitted by the County did not address the time frame required for petitions for judicial review and the judicial review requirements for failure to issue minor permits. However, as described below, the ACHD's regulations contain provisions which address the requirements:

(1) Time frame for judicial review: Although the ACHD's operating permit program regulations do not specify the time frame for filing a petition for judicial review, the ACHD is generally subject to Article XI, Hearings and Appeals. In order to obtain judicial review, section 1104(a) requires that an appellant must first file a notice of appeal to the Director of the ACHD and go through an administrative hearing process. The notice of appeal, as described in ACHD regulations, section 1104(b), requires the names, addresses, and telephone numbers of the appellant and his or her duly authorized attorney or agent, if any, and shall describe grounds for appeal. The notice of appeal must be filed no later than 10 days after written notice or issuance of the action by which the appellant is aggrieved. The remaining requirements for submission of information by the appellant is described in the procedures set forth in section 1105 of the ACHD's regulations. The ACHD regulations meet the requirement for initiating judicial review required by 40 CFR part 70.

(2) Judicial review for failure to act on minor permits : The ACHD's program does not specifically address judicial review for failure to issue a minor permit modification as a separate appealable action. However, section 2103.14(c)(8) clearly requires final action within 60 days for any proposed minor permit modification. Section 2103.11(f) states that the Department's failure to take final action is appealable and that the Court of Common Pleas may require action on the application without further delay. Therefore, the ACHD's regulations contain necessary authority to compel action on minor permit modifications.

The transition plan included in section 2103.01 of the ACHD's regulations specified deadlines for permit application submittal and permit issuance. These dates have passed. Nonetheless, EPA previously approved the Commonwealth of Pennsylvania's part 70 operating permit program on August 29, 1996 (see 61 FR 39598) which established deadlines for permit applications that applied state-wide. The ACHD's request to have partial program approval does not affect, or change in any way, the dates established in the Commonwealth's approved program.

The ACHD's program limits changes without a permit revision to de minimis levels in section 2103.14. The ACHD regulations allow a permit shield for de minimis changes, unless prohibited by the CAA. In this final rulemaking, EPA is clarifying that the Act's implementing regulations, 40 CFR part 70, do prohibit permit shield for de minimis changes to a title V permit.

The ACHD has incorporated most of the recordkeeping and reporting requirements required under part 70 for an emergency to be considered an affirmative defense. However, consistent with Pennsylvania's program, the ACHD program does not allow an emergency to be considered an affirmative defense. EPA clarified in its August 31, 1995 (60 FR 45530) supplemental part 70 document that “the part 70 rule does not require the States to adopt the emergency defense. A State may include such a defense in its part 70 program to the extent it finds appropriate, although it may not adopt an emergency defense less stringent than that set forth at 40 CFR 70.6 (g).” As the adoption of emergency defense provisions under part 70 is discretionary, the ACHD's program is not inconsistent with part 70.

A detailed description of Allegheny County's submittal and EPA's evaluation are included in a technical support document (TSD) in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

The November 5, 1998 submittal, as amended March 1, 2001, requested approval of numerous revisions of the Pennsylvania State Implementation Plan (SIP) as well as approval of the ACHD's operating permit program. This final rule addresses only the ACHD's part 70 operating permit program approval. The part 70 operating permit program is also referred to as the title V program, referencing the CAA citation for part 70 operating permit programs.

The November 9, 1998, submittal, as amended March 1, 2001, contained numerous requests for revisions to the Pennsylvania SIP, including a recodification of the regulations in general, amendments to major and minor new source review (NSR) and prevention of significant deterioration (PSD) programs, as well as requests for approval or delegation of programs under 40 CFR parts 52, 63 and part 70 permitting programs, and approval for delegation of programs under section 112 of the Act. These requests have been or will be the subjects of separate rulemakings.

EPA is taking direct final action fully approving a partial operating permit program to allow ACHD to issue operating permits to all major stationary sources in Allegheny County, Pennsylvania. In addition, EPA is withdrawing its proposed rule of December 6, 1999(64 FR 68066). EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the operating permit program approval if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on December 17, 2001 without further notice unless EPA receives adverse comment by December 3, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing state operating permit programs, 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 an operating permit program submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of an operating permit program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 31, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving a partial title V operating permit program for the ACHD, Allegheny County, Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Section 3006 of RCRA allows EPA to authorize State hazardous waste management programs to operate in the State in lieu of the Federal hazardous waste management program subject to the authority retained by EPA in accordance with RCRA, including HSWA. EPA grants authorization if the Agency finds that the State program (1) is “equivalent” to the Federal program, (2) is consistent with the Federal program and other State programs, and (3) provides for adequate enforcement (section 3006(b), 42 U.S.C. 6926(b)). EPA regulations for final State authorization appear at 40 CFR part 271.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste management program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

On May 5, 1999, Hawaii submitted an official application for final authorization to administer the RCRA program. On June 22, 2000, EPA published a tentative determination announcing its intent to grant Hawaii final authorization. Further background on the tentative decision to grant authorization appears at 65 FR 38802-38806, June 22, 2000.

Along with the tentative determination, EPA announced the availability of the application for public comment and the dates of a public meeting and a public hearing. The public meeting was held on July 25, 2000 and the public hearing was held on July 27, 2000.

The EPA received three oral comments, one of which was supplemented in writing, and one letter containing written comment during the public comment period. Additionally, in April 2001, after the close of the comment period, EPA received a Petition To Withdraw Hawaii Certification and Title VI Complaint of Discriminatory Acts (Petition to Withdraw) document challenging the administration and enforcement of environmental programs by the State of Hawaii and seeking withdrawal of authorization for all environmental programs, including RCRA. We have taken into consideration comments in the Petition relating to the Hawaii hazardous waste management program in taking today's action. In addition, the EPA Office of Civil Rights (OCR), which is responsible for processing and investigating complaints of discrimination filed against programs or activities that receive financial assistance from EPA, has notified the complainant that it will review the Title VI Complaint of Discriminatory Acts under the procedural rules for handling Title VI Complaints. The significant issues raised by the commenters and EPA's responses are summarized below. Today's action is not a final determination on the merits of the Petition to Withdraw federal authorization for all environmental programs in Hawaii.

1. Comment: EPA received comments relating to the Hawaii Department of Health's (HDOH) implementation of other programs for which Hawaii had been delegated authority by EPA. The comments generally asserted that the HDOH could not adequately enforce the laws and regulations of the hazardous waste management program because its record of performance in other environmental programs is poor. Some specific examples cited were that Hawaii's enforcement of the Clean Water Act is poor, its implementation of the Total Maximum Daily Load program (TMDL) is poor, and, in general, it lacks adequate funds, staff and commitment for environmental programs, such as the solid waste program. The Petition to Withdraw also raised these concerns. Please note, today's action is not a final determination on the merits of the Petition to Withdraw.

Response: Each environmental program is unique and must be evaluated in light of the particular federal and state requirements applicable to that program. Among other things, programs differ significantly in the numbers and types of pollutants regulated; the number, size and type of facilities which are regulated; complexity and scope of regulatory requirements; regulatory mechanisms (for example, use of permits and prohibitions); tools for assessing compliance (e.g., inspections, self- monitoring and self-reporting); and enforcement options. Moreover, different programs vary in funding levels and sources, and staffing levels (both number of staff and required qualifications).

With respect to HDOH's performance in implementing the hazardous waste management program, EPA will discuss four program areas: compliance and enforcement, permitting, corrective action and waste minimization. HDOH has demonstrated steady progress in developing a strong compliance program. HDOH has been developing its capability to enforce the hazardous waste regulations since 1988, eleven years prior to submitting its application for program authorization in 1999. Since 1994, when Hawaii first promulgated state hazardous waste regulations, the HDOH staff have conducted more than 170 inspections of generators or treatment facilities and have developed 30 enforcement actions as a result of those inspections. Included in HDOH's recent enforcement efforts was a complex joint enforcement action with EPA against the University of Hawaii. That enforcement action resulted in one of the largest RCRA settlements ever for hazardous waste violations in EPA Region 9, including $1.7 million in penalties and environmental projects.

HDOH has inspected or visited another 530 sites, which were determined to be either conditionally exempt from regulation because they generated small amounts of hazardous waste, or not hazardous waste sites because the original facility no longer existed at that location. Information from these 530 smaller inspections and visits was used to update the HDOH database of facilities subject to RCRA hazardous waste management regulations. Twenty five of its 30 enforcement actions are complete, resulting in $792,058 in penalties collected. HDOH has also negotiated, as part of two settlements, supplemental environmental projects worth about $1.2 million. The EPA believes that this record demonstrates both a capacity and a commitment to enforce hazardous waste regulations.

Enforcement is only one aspect of a comprehensive hazardous waste management program. Other important components are permitting, which includes permitting currently operating treatment, storage and disposal facilities; corrective action, i.e., monitoring the cleanup of sites where past practices or accidents have resulted in hazardous waste spilling on the ground; and waste minimization, involving development of projects to promote future safe practices and waste reduction efforts. EPA believes that the Hawaii hazardous waste management program is thorough and sound in its permitting, corrective action and waste reduction activities.

Under the second part of the program, permitting, there is only one non-emergency permitted hazardous waste facility operating in Hawaii. The U.S. Navy at Pearl Harbor operates a hazardous waste storage facility to store hazardous wastes generated by the Navy until the wastes can be shipped to the mainland for proper treatment and disposal. The Pearl Harbor facility renewed a five-year permit in July 2000. The HDOH permit writer took the lead for reviewing the Navy's application and for developing the subsequent permit, issued pursuant to both Hawaii and Federal laws and regulations. There are currently three emergency permits that have been issued in Hawaii. Emergency permits are temporary permits, with a duration of no more than 90 days, issued to address an imminent and substantial endangerment to human health or the environment.

The only other site which may lawfully store hazardous waste on Hawaii is under the administration of the EPA rather than HDOH. That site is another U.S. Navy site at Pearl Harbor, which is storing hazardous waste mixed with radioactive waste until it can be shipped to planned treatment and disposal facilities on the mainland. Pearl Harbor is currently storing this waste under a compliance order entered into with EPA. When all of the currently stored waste is transferred, the site will not store hazardous waste beyond the amount of time allowed any generator in Hawaii to accumulate hazardous waste for safe transportation. In accordance with EPA's independent inspection and enforcement authorities after program authorization, EPA will continue to administer this order unless there is an agreement at some future time for HDOH to assume these duties.

The HDOH is monitoring the cleanup of four sites in Hawaii. Those sites comprise Hawaii's corrective action universe. All four of these sites have achieved sufficient cleanup and control to safeguard human health and groundwater.

In the area of waste minimization, the HDOH is implementing several projects to provide information to businesses and the public that will assist them in improving Hawaii's environment by preventing wastes from ever being generated or reducing the amount of waste a business needs to generate in its industrial processes.

In all four of these program areas: compliance and enforcement, permitting, corrective action, and waste minimization, Hawaii's record of performance shows it can adequately implement and enforce the laws and regulations of the hazardous waste management program.

With respect to the comments related to Hawaii's implementation and enforcement of the Clean Water Act, these are the same comments which were raised in the Petition. In response to the Petition, EPA decided to change its schedule of state program audits to perform an audit of Hawaii's NPDES program earlier than originally scheduled. Pursuant to the audit, EPA reviewed Hawaii's statutory authorities as well as enforcement mechanisms, and the audit raised some concerns, particularly related to enforcement. EPA is working with the State to address those concerns. We are also reviewing the issues raised in the Petition, and will respond directly to the Petitioner on those issues.

2. Comment: Several comments generally expressed concern that the State of Hawaii has sometimes violated its own regulations and cannot take enforcement action against itself.

Response: The HDOH does have the legal authority to bring an enforcement action against another state agency and, in fact, HDOH has taken enforcement action against another state agency. The EPA is satisfied that appropriate enforcement actions can and will be taken by HDOH against other non-complying State of Hawaii agencies when necessary. Over the last five years HDOH has targeted both local, state and federal governmental facilities, as well as private businesses, for hazardous waste compliance inspections. These inspections have resulted in 30 hazardous waste enforcement cases against public and private entities. Most recently, HDOH's largest hazardous waste enforcement case was against the University of Hawaii, a state-funded agency, that resulted in a $1.7 million settlement. The settlement includes a cash penalty of $505,000 and an agreement that the University will undertake several system-wide pollution prevention and waste minimization projects at a total value of $1.2 million, and an extensive compliance audit of its facilities. The University of Hawaii action was a joint enforcement effort between HDOH and EPA.

3. Comment: A commenter expressed concern that HDOH has not developed appropriately protective regulations, commenting for example that the State does not have good water quality standards. Similar concerns were mentioned in the Petition to Withdraw. Please note, today's action is not a final determination on the merits of the Petition to Withdraw.

Response: As adopted in 1994, and amended in 1998, the Hawaii hazardous waste management rules are at least as stringent as the federal rules and in some cases are even more protective, as was outlined in the Federal Register document discussing EPA's tentative determination to authorize the Hawaii hazardous waste management program, 65 FR 38802 (June 22, 2000). Hawaii has adopted all applicable federal RCRA hazardous waste management rules through May 25, 1998, and will continue to adopt new federal rules which are more protective of the environment. In addition, federal rules promulgated under the Hazardous and Solid Waste Amendments of 1984 (HSWA) are immediately enforceable by the U. S. EPA until Hawaii adopts and receives authorization for them.

HDOH is currently reviewing the water quality standards for Hawaii, as required by the Clean Water Act. The EPA is working closely with the State during this triennial review process to ensure a successful outcome. The HDOH is expected to complete its review by the end of 2002. However, the adequacy of water quality standards is not an element of the criteria for determining a state hazardous waste management program's eligibility for RCRA authorization.

4. Comment: One commenter said EPA has failed to adequately monitor the State of Hawaii programs and that program funds designated for a specific program have been given to other programs.

Response: The commenter did not give a specific example of a program or a federally-funded grant that was not adequately monitored or of misuse or misapplication of funds. Given that this Notice is addressing authorization of the hazardous waste management program, EPA will address the hazardous waste management program for which Hawaii is seeking authorization. Since 1988, EPA has annually evaluated HDOH's development and implementation of the hazardous waste management program. The hazardous waste management program has been supported by annual federal grants with appropriate matching state funds since 1988. As a part of these grants, EPA and HDOH negotiated annual work plans with EPA monitoring HDOH performance throughout the year. After the end of each annual grant EPA conducted a complete evaluation of the HDOH hazardous waste management program expenditures under the grant. EPA determined that HDOH accomplished all of the work described in the annual grants, or, on the occasions when HDOH experienced a vacant position or for some other reason missed a work commitment, HDOH has returned an appropriate amount of hazardous waste federal funds to EPA. EPA is satisfied that HDOH implements an effective hazardous waste management program and that HDOH has completed the work supported by the federal hazardous waste grants. EPA will continue to conduct program evaluations and monitor HDOH performance and grant expenditures.

5. Comment: A commenter said that the two-year enforcement trend that EPA discussed at a public meeting on July 25, 2000 was insufficient to predict continuing success.

Response: Although EPA focused on the three most recent years of HDOH inspection and enforcement history at the public meeting, HDOH has been conducting inspections since 1994, when the State rules were first promulgated. In making its authorization determination, EPA has reviewed the full HDOH inspection history. Since 1994, HDOH has conducted more than 170 inspections of large generators and has annually monitored compliance at the only non-emergency permitted hazardous waste storage facility. These inspections have resulted in 30 enforcement actions since 1994, including a complex joint enforcement action with EPA against the University of Hawaii.

6. Comment: A commenter said that Hawaii's hazardous waste management program is not adequately funded and is staffed by temporary employees. Similar concerns were raised in the Petition to Withdraw. Please note, today's action is not a final determination on the merits of the Petition to Withdraw.

Response: Before making an authorization determination, EPA evaluates the State's program in light of the following characteristics: past performance, resources and skill mix, training program, and State commitment; and EPA's expectation of the program's continuing success. EPA has evaluated all aspects of Hawaii's hazardous waste management program and has determined that Hawaii's program is adequate and the level of the State's resources is sufficient.

Hawaii has issued quality permits and the quality of the State's corrective action activities is high. All four of Hawaii's corrective action sites have corrective actions in place that are protective of human health and groundwater. The State's inspections and subsequent reports have adequately documented violations resulting in the successful assessment and collection of penalties. Hawaii has issued enforcement orders, settled cases and collected penalties in a timely manner; all of their enforcement cases initiated prior to the year 2000 are resolved. In addition, Hawaii has devoted sufficient State resources necessary to match the Federal hazardous waste management program grants. The State prepares and implements an annual training plan that ensures that all staff are adequately trained. Hawaii also has and effectively uses a data management system that provides timely and accurate information to the State and EPA. EPA believes that the State has demonstrated that it has the necessary resources, experience and organizational structure to successfully implement the provisions for which it is seeking authorization.

EPA believes that all of these actions and efforts are adequate to support HDOH's program, which has a universe of one storage facility, eight closing or closed facilities, four other sites undergoing cleanup, 55 large generators and 450 smaller generators of hazardous waste. All of the staff of the hazardous waste management program, the equivalent of 12 full time employees (FTE), occupy permanent positions.

7. Comment: A comment requested that HDOH develop, and get public involvement in, a policy to design and monitor supplemental environmental projects (SEP). The commenter said that they believed there was a SEP negotiated several years ago that awarded money to a non-profit agency without allowing other non-profit agencies to bid for the work. The commenter could not specify the office that developed the SEP or the violator involved.

Response: Hawaii is not required by RCRA statute or regulation to develop a supplemental environmental projects policy. Therefore EPA cannot condition RCRA authorization on whether HDOH has a SEP policy or the process to develop a SEP policy. Nevertheless, HDOH has chosen to adopt the EPA SEP policy, which obtains penalties for violations, but allows a portion of the penalty to be replaced by environmental work that is directly related to the violation. The February 2001 settlement of the enforcement action against the University of Hawaii contains the first SEP developed by the HDOH hazardous waste management program. EPA is satisfied with HDOH's application of its penalty and SEP policies in the University of Hawaii case. EPA believes that the HDOH policy concerning hazardous waste penalties is consistent with the federal policy and provides adequate enforcement of compliance with the hazardous waste rules for purposes of authorization.

8. Comment: A comment proposed that, instead of giving the HDOH hazardous waste management program authorization, EPA give HDOH funding and training.

Response: As is the case with other States, EPA will continue to support HDOH's hazardous waste management program with available funding, training opportunities and coordinated activities after program authorization. EPA has supported the program since 1988 with federal grant funds. The EPA has provided training to HDOH in several areas, including inspections and enforcement, health and safety, penalty and economic benefit calculations, information management and waste minimization. The EPA also conducts program evaluations and provides feedback to the HDOH. The EPA will continue to do all of these things even after the program is approved.

9. Comment: A comment asked that the HDOH hazardous waste management program not be authorized until HDOH has developed criminal penalties.

Response: RCRA requires that authorized States have the authority to assess criminal penalties of at least $10,000 per day for each violation and imprisonment for at least six months. The criminal remedies must address the transport, permitting and used oil violations described at 40 CFR 271.16(a)(3)(ii). Under Hawaii Revised Statutes (HRS) Chapter 342J-9(c), Hawaii may assess criminal penalties up to $25,000 for each day of each violation or imprisonment for up to one year, or both; each of these provisions is more stringent than required for authorization. Additionally, the types of violations identified at HRS 342J-9(c) are consistent with the violations listed at 40 CFR 271.16(a)(3)(ii). Furthermore, HRS Chapters, 342J-7(a), 342J-8, and 342J-11 give Hawaii the authority to obtain injunctions against any person for any unauthorized activity which is endangering or causing damage to public health or the environment. Thus, Hawaii is authorized to assess criminal penalties, and such authority is consistent with the federal RCRA authorization requirements and therefore adequate for program authorization.

10. Comment: The Petition to Withdraw raised issues with Hawaii's investigative and enforcement efforts in connection with a March 2001 mercury release. Please note, today's action is not a final determination on the merits of the Petition to Withdraw.

Response: EPA is working with Hawaii on the cleanup and enforcement activities surrounding the mercury release. The HDOH office responsible for hazardous waste cleanup and enforcement in Hawaii is the Hazard Evaluation and Emergency Response (HEER) Office. The HEER Office does not administer the hazardous waste management program that is the subject of this authorization decision. The HEER Office had the lead in managing the cleanup activities. However, the EPA Emergency Response Team, the United States Navy and Air Force, and other local agencies participated in the cleanup. Cleanup of the mercury release and disposal of the waste was completed on or around July 30, 2001. Currently, the HEER Office is investigating the circumstances of the release to identify the responsible parties and recover response costs. The status of a state's hazardous waste cleanup activities however is not part of the criteria for determining a state hazardous waste management program's eligibility for RCRA authorization.

EPA has made the final determination that Hawaii's application meets all of the statutory and regulatory requirements established by RCRA as of May 25, 1998. Therefore, we are granting Hawaii final authorization to operate its hazardous waste management program described in the authorization application, subject to the authority retained by EPA under RCRA. Hawaii will have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its program application, subject to the limitations of RCRA, including HSWA. New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before such states are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Hawaii, including issuing permits, until the State is granted authorization to do so.

The effect of today's action is that persons in Hawaii that are subject to RCRA must comply with the authorized State requirements in lieu of the corresponding Federal requirements in order to comply with RCRA. Additionally, such persons must comply with any applicable Federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not yet received authorization, and RCRA requirements that are not supplanted by authorized state-issued requirements. Hawaii continues to have enforcement responsibilities under its State law to pursue violations of its hazardous waste management program. EPA continues to have independent authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements (including State-issued statutes and regulations that are authorized by EPA and any applicable Federally-issued statutes and regulations) and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own action.

This action does not impose additional requirements on the regulated community because the regulations for which Hawaii is authorized are already effective under State law and are not changed by the act of authorization.

EPA cannot delegate the Federal requirements for international export and transfrontier shipments of hazardous wastes at 40 CFR part 262, subparts E and H. Although Hawaii has adopted these requirements verbatim from the Federal regulations in Title 11 of the Hawaii Administrative Rules, sections 11-260, 11-261, and 11-262, EPA will continue to implement those requirements. Hawaii is not authorized for the requirements for international export and transfrontier shipments of hazardous wastes at 40 CFR part 262, subparts E and H.

On May 5, 1999, Hawaii submitted a final complete program application, seeking authorization in accordance with 40 CFR 271.3. In developing its hazardous waste management program, Hawaii adopted almost verbatim the federal hazardous waste regulations found in 40 CFR parts 260-266, 268, 270, 273 and 279, effective through May 25, 1998. We are granting Hawaii final authorization for the hazardous waste management program submitted. State hazardous waste management requirements that are either equivalent to or more stringent than the corresponding federal requirements will become part of the authorized State program and are federally enforceable. Upon authorization, the State's hazardous waste management rules that are either equivalent to or more stringent than the corresponding federal rules will apply in lieu of the federal rules. State hazardous waste requirements that are broader in scope than the federal program will not be part of the authorized program and are not federally enforceable. The applicable authorized rules are identified in the chart below. In the discussion below, we also identify the state hazardous waste requirements that are more stringent or broader in scope.

Hawaii did not adopt certain rulemaking petition procedures from 40 CFR part 260, subpart C, i.e., 40 CFR 260.20, 260.21, 260.22, 260.30, 260.31, 260.32 and 260.33, which address what to include in

• Petitions requesting modifications under 40 CFR parts 260 through 266, 268 and 273, and

• Petitions concerning equivalent testing methods, waste exclusion, recycled materials and devices classified as boilers.

Adoption of these rulemaking petition procedures is not required for RCRA authorization. EPA will continue to implement those requirements. Although Hawaii did not adopt these procedures, Hawaii did adopt some similar procedures which are discussed below with other more stringent requirements.

Where EPA grants a petitioner an exclusion from federally-issued standards under these procedures, it is advisable that the petitioner contact the State regulatory authority to determine the current status of its waste under State law. It is important for petitioners to contact Hawaii because States are free to impose requirements that are more stringent or broader in scope than Federal programs (RCRA section 3009 and 40 CFR 271.1(i)).

Authorized State hazardous waste requirements are either equivalent to or more stringent than the corresponding federal requirements. The Hawaii hazardous waste requirements authorized with today's action include state requirements that are more stringent than the corresponding federal requirements.

Hawaii's program is more stringent in the manner in which it addresses federally approved variances and exclusions. Hawaii's hazardous waste management program includes procedures by which a petitioner may seek an exclusion or variance under State law where EPA has previously approved an exclusion or variance under RCRA. Where EPA has excluded a waste from regulation under 40 CFR 260.22, the exclusion will only be effective under Hawaii law if Hawaii adopts the exclusion by rule, pursuant to HAR 11-260-42. Similarly, under HAR 11-268-51, any extension, variance or alternative treatment approval granted by EPA under 40 CFR 268.5, 268.6 and 268.44 will not be effective in the state unless Hawaii adopts it by rule. Finally, under HAR 11-264-1082(c)(4)(ii) the State must separately approve any alternative treatment method approved by EPA under 40 CFR 268.42(b). Given the additional procedures required by Hawaii, these State requirements are considered more stringent than the federal program.

Hawaii has also adopted some more stringent requirements concerning permits. Hawaii established a shorter permit term (five years instead of ten years) than the federal program, and is therefore more stringent than the federal program. Additionally, Hawaii reviews hazardous waste land disposal permits three years rather than five years after issuance, which is also more stringent than the federal program. However, there are currently no such facilities in Hawaii. Furthermore, Hawaii's provision under HAR 11-271-15(e) establishing a maximum time period of 180 days for the State's action on a permit application, will be terminated as soon as Hawaii obtains federal authorization for its hazardous waste management program pursuant to HAR 11-271-15(f).

States are free to impose hazardous waste requirements that are broader in scope than the Federal hazardous waste management program. Broader in scope requirements will not be part of the authorized program.

Hawaii did not adopt 40 CFR 261.4(b)(5) and therefore does not exclude drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy from regulation as hazardous waste. With respect to the management of those wastes, the Hawaii program is therefore broader in scope than the federal program. EPA cannot enforce requirements that are broader in scope than the federal program. Broader in scope requirements will not be part of the authorized program. Although you must comply with these requirements in accordance with state law, they will not be RCRA requirements under the authorized program and are not federally enforceable.

Hawaii's used oil requirements also reflect some departure from the federal program. Hawaii requires persons who transport, market or recycle used oil or used oil fuel to obtain a permit from HDOH, which requirement is broader in scope than the federal program. Hawaii also requires an annual report of transporters, processors, re-refiners and marketers, in addition to the RCRA required biennial reports, in order to allow the State to track legitimate handlers of used oil and thus better locate illegal handlers. This requirement is broader in scope than the federal program.

Hawaii adds a requirement that any person who imports hazardous waste from a foreign country or from a state into Hawaii must submit additional information in writing to the State within 30 days after the waste arrives. This requirement is broader in scope than the federal program.

In summary, EPA considers the following State requirements to be more stringent than the Federal requirements:

• HAR 11-268-51, because the State must separately approve any exclusion, variance or alternative treatment method approved by EPA under 40 CFR 268.5, 268.6, 268.42(b) and 268.44; and

• HAR 11-270-50(a) and (d), because the State limits hazardous waste permits to five years (the federal limit is 10 years), and landfill permits to three years (the federal limit is five years).

EPA considers that the following State requirements go beyond the scope of the federal program. EPA cannot enforce requirements that are broader in scope than the federal program. Broader in scope requirements will not be part of the authorized program. Although persons must comply with these requirements in accordance with state law, they will not be RCRA requirements under the authorized program and are not federally enforceable.

• HAR 11-261-4(b)(5), because the State treats drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy as hazardous waste, and the Federal requirements exempt them from regulation;

• HAR 11-262-60 and HAR 11-262-61, because, unlike the Federal program, the State requires that any person who imports hazardous waste from a foreign country or from any state into Hawaii must submit specified information in writing within 30 days after the waste arrives in the State;

• HAR 11-279-90 to HAR 11-279-95, because the State requires that persons who transport, market or recycle used oil or used oil fuel obtain a State permit and the Federal program has no such permitting requirement; and

• HAR 11-279-48, 57 and HAR 11-279-76, because the State requires annual reports of used oil transporters, processors, re-refiners, and marketers, in addition to the biennial reports required by RCRA.

Section 3006(b) of RCRA requires that the State provide adequate enforcement of compliance with the hazardous waste management requirements in order to receive authorization. We have determined that Hawaii can adequately enforce compliance with its hazardous waste management regulations. Hawaii's enforcement authorities include the power to issue, modify, suspend or revoke permits; collect information and enter and inspect the premises of persons who handle hazardous wastes; assess administrative penalties or initiate action in court for penalties or injunctive relief; issue abatement and corrective action orders; and pursue criminal violations. Hawaii's enforcement provisions are located at Hawaii Revised Statute (HRS) Chapter 342J (1993 and Supp. 1998).

Hawaii will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will transfer the administration of any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization to Hawaii. In the Notice of Tentative Determination, EPA said that it would continue to administer any RCRA hazardous waste permits or portions of permits issued by EPA prior to the effective date of this authorization. However, under the Memorandum of Agreement with Hawaii, EPA and HDOH have agreed that HDOH will administer the permits or portions of permits issued by EPA prior to authorization. EPA will not issue any new permits or new portions of permits for the authorized provisions after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Hawaii is not yet authorized.

There are no Federally-recognized Indian lands in Hawaii.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. We are reserving the amendment of 40 CFR part 272, subpart M, for codification of Hawaii's program at a later date.

The Office of Management and Budget has exempted RCRA authorizations from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and, therefore, a decision to authorize Hawaii for these revisions is not subject to review by OMB. Furthermore, this rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. This authorization will effectively suspend the applicability of certain Federal regulations in favor of Hawaii's program, thereby eliminating duplicative requirements for handlers of hazardous waste in the State. Authorization will not impose any new burdens on small entities. Accordingly, I certify that authorization for these revisions 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 action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibility between the Federal government and Indian tribes, as specified in Executive Order 13175. This action does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste management program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action does not include environmental justice related issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

Under RCRA 3006(b), EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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 this action in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order. This action will not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document 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 in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective November 13, 2001.

This rule finalizes the interim rule published as Item XXXV of Defense Acquisition Circular 91-9 on November 30, 1995 (60 FR 61586). The interim rule amended the DFARS to conform to FAR changes that implemented Title VIII of the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355) pertaining to the acquisition of commercial items. The interim rule also added DoD-unique requirements pertaining to the acquisition of commercial items.

The final rule differs from the interim rule in that it adds the following to the lists of provisions and clauses that must be included in solicitations and contracts to implement statutory requirements:

• FAR 52.203-3, Gratuities (10 U.S.C. 2207).

• DFARS 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country (10 U.S.C. 2327).

• DFARS 252.219-7004, Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan (Test Program) (15 U.S.C. 637 note).

In addition, the final rule adds dates to the contract clauses listed in 252.212-7001, to clarify which version of each clause applies to a contract.

Ten sources submitted comments on the interim rule. DoD considered all comments in the development of the final rule.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD has prepared a final regulatory flexibility analysis. Interested parties may obtain a copy of the analysis from the point of contact specified herein. The analysis is summarized as follows:

This rule finalizes an interim DFARS rule published on November 30, 1995. The rule implements provisions of the Federal Acquisition Streamlining Act of 1994 and supplements FAR policy pertaining to the acquisition of commercial items. The objective of the FAR and DFARS policy is to streamline procedures for the acquisition of commercial items. DoD received no comments in response to the initial regulatory flexibility analysis. The rule applies to all small entities that are interested in selling commercial items to DoD. Based on data collected by DoD's Washington Headquarters Services, in Fiscal Year 2000, DoD awarded approximately 11,437 contracts totaling $2.2 billion to small business concerns using the streamlined procedures in the interim rule. There are no significant alternatives to the rule that would accomplish the stated objectives.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule amends the policy at DFARS 213.301 to permit contracting officers supporting a contingency operation, as defined in 10 U.S.C. 101(a)(13), or a humanitarian or peacekeeping operation, as defined in 10 U.S.C. 2302(8), to use the Governmentwide commercial purchase card on a stand-alone basis for purchases valued at or below the simplified acquisition threshold. In accordance with FAR 2.101, the simplified acquisition threshold for contingency, humanitarian, or peacekeeping operations is $200,000.

Use of the purchase card at the $200,000 threshold is subject to the existing conditions at DFARS 213.301 and the following additional conditions: (1) The supplies or services must be immediately available; and (2) Only one delivery and one payment will be made. These additional conditions are similar to those placed on use of the Standard Form 44, Purchase Order-Invoice-Voucher, in accordance with FAR 13.306 and DFARS 213.306.

DoD published a proposed rule at 65 FR 56858 on September 20, 2000. DoD received no comments on the proposed rule. DoD has adopted the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule applies only to purchases that are made outside the United States for use outside the United States in support of contingency, humanitarian, or peacekeeping operations.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A final rule was published in the Federal Register on 66 FR 43524 (August 20, 2001), to require groundfish motherships and catcher/processors to submit annually to the State of Alaska, Department of Fish & Game (ADF&G), a COAR.

Several errors were made in Tables 14A, 15, 16, and 18 to 50 CFR part 679. These tables are corrected and reprinted as follows:

Alaska, Fisheries, Recordkeeping and reporting requirements.

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 at 50 CFR part 679.

The 2001 red king crab bycatch allowance specified for Zone 1 of the BSAI trawl yellowfin sole fishery category, which is defined at § 679.21(e)(3)(iv)(B)( 1 ), is 11,664 animals (66 FR 7276, January 22, 2001 and 66 FR 37167, July 17, 2001).

In accordance with § 679.21(e)(7)(ii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2001 bycatch allowance of red king crab specified for the trawl yellowfin sole fishery in Zone 1 of the BSAI has been caught. Consequently, the Regional Administrator is closing directed fishing for yellowfin sole by vessels using trawl gear in Zone 1 of 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 red king crab bycatch allowance for the yellowfin sole fishery category constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and at 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 red king crab bycatch allowance for the yellowfin

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