The OCC charters, regulates, and supervises approximately 2,200 national banks and 58 Federal branches and agencies of foreign banks in the United States, accounting for approximately 55 percent of the nation's banking assets. Our mission is to ensure a safe, sound, and competitive national banking system that supports the citizens, communities, and economy of the United States.

The OCC funds the activities it undertakes to carry out this mission through assessments on institutions regulated by the OCC. The National Bank Act authorizes the OCC to collect assessments, fees, or other charges as necessary or appropriate to carry out the responsibilities of the Office. 12 U.S.C. 482 (Supp. 2000). The statute requires that our charges be set to meet the Comptroller's expenses in carrying out authorized activities. Id. Pursuant to part 8 of its regulations, the OCC currently assesses national banks and Federal branches and agencies according to the following formula, set forth in the table at § 8.2(a):

Under this formula, the OCC assesses a national bank according to the amount of assets the bank reports on its Consolidated Report of Condition (Including Domestic and Foreign Subsidiaries) (“Call Report”) filed for the quarter preceding the semiannual assessment period. A bank calculates the book-asset component of its assessment by first identifying which of 10 asset categories it fits within. If the bank fits within the smallest category ( i.e., $0 to $2 million), it multiplies all of its assets by a marginal rate that is provided each year by the OCC in the Notice of the Comptroller of the Currency Fees (Notice of Fees). Under this system, a national bank with $2 million in assets currently pays approximately $3,211 ($2 million multiplied by the 0.0016057180 marginal rate currently in effect) semiannually for the cost of its supervision by the OCC.

If the bank fits within any of the other nine asset categories, the bank pays a base amount provided in the Notice of Fees for that category (which equals the assessment on the largest bank in the next smallest asset category), plus an amount determined by multiplying a marginal rate (also provided in the Notice of Fees) by the amount of its assets that exceed the low end-point of its category. Thus, for example, a bank with $10 million in assets would fall into the second asset category ($2 million to $20 million) and would pay an assessment equal to $3,211, which is the current base amount for its category, plus $1605, which is the product of the current marginal rate for that category (0.0002007170), multiplied by $8 million (the amount of its assets that exceeds the $2 million low-end point for its category). 1

On September 25, 2001, the OCC published a notice of proposed rulemaking in the Federal Register (66 FR 48983) to amend this assessment formula. The OCC proposed revising the table at § 8.2(a) to establish a minimum base amount for the semiannual assessment for the first assessment bracket of the assessment schedule. To accomplish this, the proposal deleted the figure of $0 as the base amount in Column C for the first asset bracket and replaced it with a variable (X1). The proposal also deleted the variable Y1 in Column D and replaced it with 0. The proposed revised table at § 8.2(a) looked as follows:

The OCC received nine comments on the proposal, all of which expressed concern about the impact of the increase on small banks. For the reasons discussed below, we are adopting the rule as proposed.

The OCC is revising the table at § 8.2(a) as proposed to establish a minimum base amount for the semiannual assessment for the first asset category of the assessment schedule. As explained in the proposal, the dollar amount of the anticipated increased semiannual assessment will be the same for every national bank with at least $2 million in balance sheet assets.

The commenters were concerned that the effect of the proposed increase would be proportionately greater for the smallest national banks than for larger banks. These commenters believe that the increase is unfair and amounts to an undue burden on small banks, particularly those operating in areas that are experiencing economic decline. Several commenters suggested mitigating the effect of the increase by phasing it in over two or three years. Others suggested increasing assessments based on a flat percentage of assets or adopting a progressive dollar increase for each asset category so that the percentage increase for the smaller institutions is not as high as with a flat dollar increase.

We have considered carefully how changes to our assessment schedule would allocate the costs of OCC operations among national banks of different sizes and concluded that adoption of the proposed increase is warranted for the following reasons. First, the principal purpose of the proposal was to align the semiannual assessment for all national banks more closely with the increasing costs of the OCC's supervision. The final rule accomplishes that objective by modestly increasing the amount of the assessment for the asset category that is applicable to all national banks.

Second, the final rule enables the OCC to strike an appropriate balance between assessing each national bank for its fair share of the OCC's expenses and moderating the impact of the increase on small national banks. We continue to anticipate, as we said in the preamble to the proposed rule, that the December 1, 2001, Notice of Fees will set a semiannual base amount for the smallest asset category in the range of $5,000 and that the marginal rate for that asset category will be 0. Applying a base amount of $5,000 and a marginal rate of 0 to national banks in the smallest asset category results in a minimum semiannual assessment charge for these banks of $5,000, or an increase of $1,789 for a bank with balance sheet assets of $2 million. The assessment for banks in each of the larger categories (X2-X10) would increase by the same dollar amount, because the base amount for any category is the maximum that a bank in the immediately preceding asset category would pay.

This approach enables the OCC to allocate its costs of supervision more equitably among national banks, and particularly to narrow the gap between the OCC's overall costs to supervise, examine and regulate smaller banks, and what these institutions pay in assessments. Although the amount of the increase will represent a proportionately greater amount of a smaller bank's total assessment than will be the case for a larger bank that pays a larger total assessment, the greater proportionate increase will affect the category of banks where the greatest disparity currently exists between the assessments those banks pay and the OCC's overall costs attributable to them.

Even so, the relatively modest size, in dollars, of the anticipated base amount results in a relatively modest increase, in dollars, even for the smallest banks. Because the OCC has decided on this approach to mitigate the effects of the increase on the smallest banks, we have declined to adopt a multi-year phase-in period, which could have resulted in an assessment increase that, ultimately, would need to be greater than we anticipate under the approach we have adopted, in order to reflect increases in costs of the OCC attributable to each institution.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the Federal Register along with its rule.

Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The OCC has reviewed the impact this final rule will have on small national banks. For purposes of this final rule, the OCC defines “small national banks” to be those banks with less than $100 million in total assets. Based on that review, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this conclusion is that the minimum semiannual assessment for these banks will increase by only approximately $1,789. The OCC does not believe this to be a significant economic impact. Accordingly, a Regulatory Flexibility Act analysis is not required.

The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC has determined that this final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed any regulatory alternatives. As noted above, for a national bank with at least $2 million in total assets, the final rule will increase the bank's semiannual assessments by $1,789.

Any new regulation that imposes “additional reporting, disclosure, or other requirements on insured depository institutions shall take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form,” unless certain exceptions apply. Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325, § 302(b) (September 23, 1994). This rulemaking imposes no such additional reporting, disclosure, or other requirements. Accordingly, the requirement to delay the effective date until the first day of the next calendar quarter does not apply, and the rule will become effective December 31.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the rules docket number and be submitted in duplicate to the address specified above. The Administrator will consider all communications received on or before the closing date for comments. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM202.” The postcard will be date stamped and returned to the commenter.

On January 9, 2001, Garrett Aviation Services, 1200 North Airport Drive, Capital Airport, Springfield, Illinois 62707, applied for a Supplemental Type Certificate (STC) for the Gulfstream G-1159, G-1159A, G-1159B series airplanes. The Gulfstream G-1159, G-1159A, G-1159B series airplanes are small transport category airplanes powered by two turbofan engines with a maximum takeoff weight of 69,700 pounds. The aircraft operate with a two pilot crew and can carry up to 19 passengers. The modified airplanes incorporate the installation of a Honeywell Epic Control Display System for Retrofit (CDS-R). The system consists of dual Electronic Primary Flight Display systems that replace the existing Primary Flight Display systems. The Honeywell Epic DCS-R has the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Garrett Aviation Services must show that the Gulfstream G-1159, G-1159A, G-1159B series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A12EA, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations included in the certification basis for the Gulfstream G-1159, G-1159A, G-1159B series airplanes include 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-41 except for special conditions and exceptions noted in Type Certificate Data Sheet (TCDS) A12EA.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Gulfstream G-1159, G-1159A, G-1159B series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Gulfstream G-1159, G-1159A, G-1159B series airplanes must comply with the fuel vent and exhaust emission requirement of 14 CFR part 34 and the noise certification requirement of 14 CFR part 36.

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the airplane's type certification basis in accordance with § 21.101(b)(2).

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

The Gulfstream G-1159, G-1159A, G-1159B series airplanes will incorporate dual Electronic Primary Flight Display Systems that will perform critical functions. The existing airworthiness standards (14 CFR part 25) do not contain adequate or appropriate safety standards that address protecting this equipment from the adverse effects of HIRF. These instruments may be vulnerable to HIRF external to the airplane. Accordingly, these instruments are considered to be a novel or unusual design feature

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electronic systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Gulfstream G-1159, G-1159A, G-1159B series airplanes modified to incorporate dual Electronic Primary Flight Display Systems. These special conditions will require that these instruments, which perform critical functions, be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown in accordance with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the following field strengths for the frequency ranges indicated. Both peak and average field strength components from the Table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to the Gulfstream G-1159, G-1159A, G-1159B series airplanes modified by Garrett Aviation Services to incorporate dual Electronic Primary Flight Display Systems. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A12EA to incorporate the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Gulfstream G-1159, G-1159A, G-1159B series airplanes modified by Garrett Aviation Services. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Gulfstream G-1159, G-1159A, G-1159B series airplanes modified by Garrett Aviation Services.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions : Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

On September 18, 2000, the Boeing Commercial Airplane Group (BCAG)—Wichita Division Designated Alteration Station (DAS) applied for a Supplemental Type Certificate (STC) from the Wichita Aircraft Certification Office (ACO). The STC is to install an overhead flightcrew rest (OFCR) and an overhead attendant rest (OAR) on Boeing Model 777-200 series airplanes. The OFCR compartment adjacent to door one will include a maximum of two private berths and two seats. Occupancy of the OFCR will be limited to a maximum of four occupants. The OAR compartment, adjacent to door three, will include a combination of private berths and seats for a maximum of twelve occupants. Occupancy of the OAR will be limited to a maximum of twelve occupants. Follow-on designs may locate the OAR at either door three, or door four depending on the Model 777-200 airplane and option(s) selected by the customer.

Both crew rests, OFCR and OAR, will be accessed from the main deck by stairs. In addition, an emergency hatch which opens directly into the cabin area will be provided for each compartment. A smoke detection system, an oxygen system, and occupant amenities will also be provided. These compartments will only be occupied in flight, not during taxi, takeoff, or landing.

The Boeing Model 777-200 series airplanes are large twin engine airplanes with various passenger capacities and ranges depending upon airplane configuration, and currently do not incorporate OFCR and OAR compartments in production. While the installation of a crew rest compartment is not a new concept for large transport category airplanes, each crew rest compartment has unique features based on design, location, and use on the airplane. Crew rest compartments have been installed and certified in the main passenger area, above the main passenger area and below the passenger cabin area within the cargo compartment of the Boeing Model 777-200/-300 series airplanes. Also, overhead crew rest compartments have been installed on the Boeing Model 747 series airplanes.

The FAA has previously issued special conditions, which contain the additional safety standards that must be met for the overhead crew rests on Boeing Model 747 series airplanes. The FAA certified the lower lobe attendant rest on the Boeing Model 777-200 series airplanes by equivalent level of safety finding to the requirements of § 25.819. In addition, the FAA issued Special Conditions No. 25-169-SC, dated December 1, 2000, for 777-200 series airplanes for overhead crew rest to support a STC for Flight Structures Inc (FSI) of Arlington, Washington. The Flight Structures, Inc. (FSI) Special Conditions No. 25-169-SC were amended on May 2, 2001.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Certification requirements for pilot “sleeping quarters” per the requirements of § 121.485 are not addressed in these special conditions. The applicant must work directly with the Aircraft Evaluation Group (AEG) with regard to the adequacy of onboard sleeping quarters/facilities for compliance with §§ 121.485(a), 121.523(b) and 135.269(b)(5). The AEG is responsible for making this finding.

Under the provisions of § 21.101, Boeing must show that the Model 777-200 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE for the Boeing Model 777-200 series airplanes include 14 CFR part 25, as amended by Amendments 25-1 through 25-82. The U.S. type certification basis for the Boeing Model 777-200 series airplanes is established in accordance with 14 CFR 21.17 and 21.29 and the type certification application date. The type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-200 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as appropriate, are issued in accordance with § 11.19, after public notice, as required by § 11.38, and become part of the type certification basis in accordance with § 21.101(b)(2).

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

While the installation of a crew rest compartment is not a new concept for large transport category airplanes, each compartment design has unique features by virtue of its design, location, and use on the airplane. Previously, crew rest compartments have been evaluated that are installed within the main passenger compartment area of the Boeing Model 777-200 and Model 777-300 series airplanes and the overhead area of the passenger compartment of the 777-200. Other crew rest compartments have been installed below the passenger cabin area, adjacent to the cargo compartment. Similar overhead crew rest compartments have also been installed on the Boeing Model 747 airplane. The interfaces of the modification are evaluated within the interior and assessed in accordance with the certification basis of the airplane. However, part 25 does not provide all the requirements for crew rest compartments within the overhead area of the passenger compartment. Further, these special conditions do not negate the need to address other applicable part 25 regulations.

Due to the novel or unusual features associated with the installation of this crew rest compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificate.

Notice of Proposed Special Conditions No. 25-01-04-SC for the Boeing Model 777-200 series airplanes, was published in the Federal Register on September 24, 2001 (66 FR 48836). Two commenters responded to the notice. One commenter finds the proposed special conditions to be satisfactory. The other commenter disagrees with aspects of the requirements of four of the proposed special conditions, however, no justification for the disagreement is provided. Therefore, the special conditions are issued as proposed.

As discussed above, these special conditions are applicable to Boeing Model 777-200 series airplanes. Should Boeing Commercial Airplane Group, Wichita Division Designated Alternation Station, apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for the Boeing Model 777-200 series airplanes is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

This action affects only certain novel or unusual design features on Boeing Model 777-200 series airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-200 series airplanes, as modified by Boeing Commercial Airplane Group, Wichita Division Designated Alteration Station, with overhead crew rest compartments, OFCR and/or OAR compartments.

1. Occupancy of the overhead crew rest compartment is limited to the total number of installed bunks and seats in each compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the crew rest compartment. The maximum occupancy is four in the OFCR and 12 for the OAR.

(a) There must be appropriate placards, inside and outside to indicate:

(1) The maximum number of occupants allowed,

(2) That occupancy is restricted to crewmembers that are trained in the evacuation procedures for the overhead crew rest compartment,

(3) That occupancy is prohibited during taxi, take-off and landing, and

(4) That smoking is prohibited in the crew rest compartment.

(5) That hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from the crew rest compartment.

(b) There must be at least one ashtray on the inside and outside of any entrance to the crew rest compartment.

(c) There must be a means to prevent passengers from entering the compartment in the event of an emergency or when no flight attendant is present.

(d) There must be a means for any door installed between the crew rest compartment and passenger cabin to be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(e) For all doors installed, there must be a means to preclude anyone from being trapped inside the compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time.

2. There must be at least two emergency evacuation routes, which could be used by each occupant of the crew rest compartment to rapidly evacuate to the main cabin. In addition—

(a) The routes must be located with sufficient separation within the compartment, and between the evacuation routes, to minimize the possibility of an event rendering both routes inoperative.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the escape route. One of two evacuation routes should not be located where, during times in which occupancy is allowed, normal movement by passengers occurs (i.e. main aisle, cross aisle or galley complex) that would impede egress of the crew rest compartment. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If there is low headroom at or near the evacuation route, provisions must be made to prevent or to protect occupants (of the crew rest area) from head injury. The use of evacuation routes must not be dependent on any powered device. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process. If the evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

(c) Emergency evacuation procedures and the emergency evacuation of incapacitated occupant procedures must be established and transmitted to the operator for incorporation into their training programs and appropriate operational manuals. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process.

(d) There must be a limitation in the Airplane Flight Manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for the evacuation of an incapacitated person (representative of a ninety-fifth percentile male) from the crew rest compartment to the passenger cabin floor.

(a) The evacuation must be demonstrated for all evacuation routes. A flight attendant or other crewmember (a total of one assistant within the crew rest area) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance, except that for evacuation routes having stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the overhead compartment, or to the first landing, whichever is lower.

(b) Procedures for the evacuation of an incapacitated person from the crew rest compartment must be established.

4. The following signs and placards must be provided in the crew rest compartment:

(a) At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i), except that a sign of reduced background area with no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color (e.g. white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one inch wide background border around the letters would also be acceptable.

(b) An appropriate placard defining the location and the operating instructions for each evacuation route.

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(d) The exit handles and evacuation path operating instruction placards must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. There must be a means in the event of failure of the airplane's main power system, or of the normal crew rest compartment lighting system, for emergency illumination to be automatically provided for the crew rest compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the crew rest compartment to locate and transfer to the main passenger cabin floor by means of each evacuation route.

6. There must be means for two-way voice communications between the crewmembers on the flight deck and the occupants of the crew rest compartment. There must also be two-way communications between the occupants of the crew rest compartment and each flight attendant station required to have a public address system microphone per § 25.1423(g) in the passenger cabin.

7. There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor level emergency exits to alert occupants of the crew rest compartment of an emergency situation. Use of a public address or crew interphone system would be acceptable, providing an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight, after the shutdown or failure of all engines and auxiliary power units, or the disconnection or failure of all power sources dependent on their continued operation, for a period of at least ten minutes.

8. There must be a means, readily detectable by seated or standing occupants of the crew rest compartment, which indicates when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence. Seat belt type restraints must be provided for berths and must be compatible for the sleeping attitude during cruise conditions. There must be a placard on each berth requiring that seat belts must be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard identifying the head position.

9. The following equipment must be provided in the crew rest compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur;

(b) One protective breathing equipment device approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for fire fighting; and

(c) One flashlight.

10. A smoke detection system (or systems) must be provided that monitors each area within the crew rest including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(a) A visual indication to the flight deck within one minute after the start of a fire;

(b) An aural warning in the crew rest compartment; and

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. The crew rest compartment must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the fire fighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

12. There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the crew rest compartment from entering any other compartment occupied by crewmembers or passengers. The means must include the time periods during the evacuation of the crew rest compartment and, if applicable, when accessing the crew rest compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers must dissipate within five minutes after closing the access to the crew rest compartment. Flight tests must be conducted to show compliance with this requirement.

If a built-in fire extinguishing system is used in lieu of manual fire fighting, then the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crew; the system must have adequate capacity to suppress any fire occurring in the crew rest compartment, considering the fire threat, volume of the compartment and the ventilation rate.

13. There must be a supplemental oxygen system equivalent to that provided for main deck passengers for each seat and berth in the crew rest compartment. The system must provide an aural and visual warning to warn the occupants of the crew rest compartment to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously until a reset push button in the crew rest compartment is depressed.

14. The following requirements apply to a crew rest compartment that is divided into several sections by the installation of curtains or partitions:

(a) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the crew rest compartment that accompanies automatic presentation of supplemental oxygen masks. A minimum of two supplemental oxygen masks are required in each section whether or not seats or berths are installed in each section. There must also be a means by which the oxygen masks can be manually deployed from the flight deck.

(b) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the overhead crew rest compartment into small sections. The placard must require that the curtain(s) remain open when the private section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private area and, therefore, does not require a placard.

(c) For each crew rest section created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

(1) No smoking placard (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Emergency alarm system (Special Condition No. 7),

(4) Seat belt fasten signal (Special Condition No. 8), and

(5) The smoke or fire detection system (Special Condition No. 10).

(d) Overhead crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the crew rest compartment, and must meet the requirements of § 25.812(b)(1)(i).

(e) Sections within an overhead crew rest compartment that are created by the installation of a rigid partition with a door physically separating the sections, the following requirements of these special conditions must be met with the door open or closed:

(1) There must be a secondary evacuation route from each section to the main deck, or alternatively, it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) There may be no more than one door between any seat or berth and the primary stairway exit.

(4) There must be exit signs in each section meeting the requirements of § 25.812(b)(1)(i) that direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.

(f) For each smaller section within the main crew rest compartment created by the installation of a partition with a door, the following requirements of these special conditions must be met with the door open or closed:

(1) No smoking placards (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Two-way voice communication (Special Condition No. 6),

(4) Emergency alarm system (Special Condition No. 7),

(5) Seat belt fasten signal (Special Condition No. 8),

(6) Emergency fire fighting and protective equipment (Special Condition No. 9), and

(7) Smoke or fire detection system (Special Condition No. 10).

15. The requirements of two-way voice communication with the flight deck and provisions for emergency firefighting and protective equipment are not applicable to lavatories or other small areas that are not intended to be occupied for extended periods of time.

16. Where a waste disposal receptacle is fitted, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

17. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853(a), as amended by Amendment 25-83. Mattresses must comply with the flammability requirements of § 25.853(c), as amended by Amendment 25-83.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 86-11-05, Amendment 39-5325 (51 FR 2025, June 4, 1986), and AD 96-18-13, Amendment 39-9737 (61 FR 47806, September 11, 1996), which are applicable to Honeywell International Inc. (formerly AlliedSignal Inc. and Garrett Turbine Engine Co.) TFE731-2, -3, and -4 series turbofan engines, was published in the Federal Register on May 2, 2001 (66 FR 21896). That action proposed to require replacing fan rotor discs part numbers (P/N's) 3072162-All, 3072816-All, 3073436-All, 3073539-All, and 3074529-All (where All denotes all dash numbers).

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 1,400 engines with affected discs in the worldwide fleet. The FAA estimates that 1,100 engines installed on aircraft of U.S. registry would be affected by this AD. The FAA also estimates that it would take approximately one work hour per engine to accomplish this action during a normally scheduled fan rotor disc removal period, and approximately six work hours per engine to accomplish this action during an unscheduled fan rotor disc removal period, and that the average labor rate is $60 per work hour. Required parts would cost approximately $20,400 per engine. Based on these figures, the total cost effect of this AD on U.S. operators is estimated to be $22,509,000.

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

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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic effect, 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 by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Indiana program on July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the July 26, 1982, Federal Register (47 FR 32107). You can find later actions on the Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

By letter dated August 21, 2001 (Administrative Record No. IND-1712), Indiana sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Indiana sent the amendment at its own initiative. Indiana recodified its administrative rules from Title 310 Indiana Administrative Code (IAC) 12 to Title 312 IAC 25. The amendment also includes revisions to Indiana's recodified rules at 312 IAC 25-1-8, definition of “affected area”; 312 IAC 25-4-17, surface mining permit applications-identification of interests; 312 IAC 25-4-18, surface mining permit applications-compliance information; 312 IAC 25-4-45, general requirements for reclamation plans, 312 IAC 25-4-58, underground mining permit applications-identification of interests; 312 IAC 25-4-59, underground mining permit applications-compliance information; 312 IAC 25-4-113, public availability of permit application information; and 312 IAC 25-4-118, permit conditions.

We announced receipt of the amendment in the September 20, 2001, Federal Register (66 FR 48390). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on October 22, 2001. We did not receive any public comments.

During our review of the amendment, we identified concerns about Indiana's rules pertaining to identification of interests at 312 IAC 25-4-17(d), (e), and (f), general requirements for reclamation plans at 312 IAC 25-4-45, public availability of information contained in permit applications at 312 IAC 25-4-113, permit conditions at 312 IAC 25-4-118(4), and editorial errors. We notified Indiana of these concerns by letter dated September 18, 2001 (Administrative Record No. IND-1715).

In its letter of August 21, 2001 (Administrative Record No. IND-1712), Indiana indicated that it would make any necessary corrections or revisions to its rules at a later date.

This section contains the Director's findings concerning the amendment to the Indiana program. We are making these findings in accordance with the criteria and procedural requirements of the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not discuss below are minor wording changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

Indiana recodified its administrative rules for coal mining and reclamation operations by repealing its previously approved rules at 310 IAC 12 and replacing them with generally similar rules at 312 IAC 25. The State took this action because Indiana Code (IC) 4-22-2.5 requires the readoption of administrative rules every seven years. Under IC 4-22-2.5-2, Indiana's previously approved rules at 310 IAC 12 will expire on January 1, 2002. In addition to renumbering and reformatting, Indiana made minor wording, editorial, and punctuation changes throughout the recodified rules.

Except as discussed in the findings below, we find that the recodification of Indiana's rules is nonsubstantive in nature and that the changes made in the recodification process do not alter the findings that we made for the previous rules. Therefore, we are approving the recodified rules, with the caveats noted below.

Indiana recodified its definition of “affected area” at 312 IAC 25-1-8 with revisions to the currently approved language. The revised definition reads as follows:

On January 23, 1997, Indiana adopted revisions to its rules concerning identification of interests and compliance information and added a section to its rules on permit conditions. Indiana based the revisions and addition to its rules on the Federal regulations at 30 CFR 773.17, 778.13 and 778.14 that existed on January 23, 1997. These revised rules were submitted as part of this amendment.

On December 19, 2000 (65 FR 79582), we made changes to the Federal regulations cited above. In reviewing this amendment, we evaluated only those revisions that Indiana made on January 23, 1997, against the corresponding provisions of the December 19, 2000, Federal regulations. We did not compare the Indiana rules in their entirety with the December 19, 2000, regulations in their entirety. Indiana may need to make further changes to its rules after we evaluate the State program against the changes made to the Federal regulations on December 19, 2000, in their entirety. We will conduct that evaluation at a later date and notify Indiana in accordance with 30 CFR 732.17(d) and (e) if any additional changes are necessary.

Following are our findings on the revisions that Indiana made to its rules on January 23, 1997.

a. Indiana's rule at 312 IAC 25-4-17 specifies the information that must be included in a surface mining permit application for identification of interests. Indiana added 312 IAC 25-4-17(b)(5) to require an applicant for a surface coal mining permit to submit the application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by each person who owns or controls the applicant under the definition of “owned or controlled” and “owns or controls” in 312 IAC 25-1-94.

As revised on December 19, 2000, the corresponding Federal regulation at 30 CFR 778.12(b) no longer requires this information. However, we find that its addition to the Indiana program will not cause the program to be less effective than the Federal regulations. Therefore, we are approving the addition of 312 IAC 25-4-17(b)(5) to the Indiana program.

b. Indiana's rule at 312 IAC 25-4-58(a) specifies the information that must be included in an underground mining permit application for identification of interests. The existing provisions were revised to make the new rule consistent with Indiana's surface mining permit application requirements for identification of interests at 312 IAC 25-4-17. The corresponding Federal regulations at 30 CFR 778.11, 778.12, and 778.13 apply to applications for both surface and underground mine permits. Therefore, Indiana's decision to make these underground mine permit application information rules consistent with the corresponding surface mine permit application information rules is consistent with the Federal regulations. None of the specific changes that Indiana has made would cause the Indiana rules to be less effective than the counterpart Federal regulations. Therefore, we are approving the revisions to the Indiana rules.

However, as noted above in finding C, on December 19, 2000, we made numerous revisions to the counterpart Federal regulations. When we conduct a comparison of those rules in their entirety with the Indiana rules in their entirety, we may identify additional changes that Indiana will need to make for its program to remain no less effective than the Federal regulations. If we identify any such changes, we will notify Indiana in accordance with 30 CFR 732.17(d) and (e).

c. Indiana added the following provision at 312 IAC 25-4-58(b):

We find that Indiana's rule at 312 IAC 25-4-58(b) contains substantively the same requirements for updating information as the counterpart Federal regulation at 30 CFR 778.9(d). Therefore, it is no less effective than the Federal regulation, and we are approving its addition to the Indiana program.

d. Indiana added a provision at 312 IAC 25-4-58(c) that requires the applicant to submit the information required by 312 IAC 25-4-58 and 25-4-59 in any format that is issued by the commission. Indiana also specifies that the commission's format must conform to the format requirements of OSM.

There is no longer any direct counterpart Federal regulation to this State rule. As noted in the preamble to our December 19, 2000, final rule (65 FR 79644), “the regulatory authority should have the flexibility to prescribe whatever format it deems appropriate” for submittal of application information. Therefore, we find that nothing in Indiana's rule at 312 IAC 25-4-58(c) would cause its program to be less effective than the Federal regulations, and we are approving the addition of this rule.

Indiana's rules at 312 IAC 25-4-18 and 25-4-59 specify the information that must be included in a permit application concerning permit suspensions or revocations, bond forfeitures, and notices of violation.

a. At 312 IAC 25-4-18(a)(1)(A) and 25-4-59(a)(1)(A), Indiana removed the language “or in the process of revocation.” As revised, these subsections require each application to contain a statement on whether the applicant or any subsidiary, affiliate, or persons controlled by or under common control with the applicant has had a Federal or State coal mining permit suspended or revoked in the five years preceding the date of submission of the application.

The counterpart Federal regulation at 30 CFR 778.14(a)(1) requires a similar statement for those permits that were suspended or revoked, but not for those that are in the process of revocation. Therefore, we find that Indiana's removal of the language “or in the process of revocation” will not make these previously approved rules less effective than the Federal regulations. Accordingly, we are approving this change.

b. Indiana revised 312 IAC 25-4-18(a)(3) and 25-4-59(a)(3) to require that an application contain a list of all outstanding violation notices received prior to the date of the application by any surface coal mining operation that is deemed or presumed to be owned or controlled by either the applicant or any person who is deemed or presumed to own or control the applicant. As revised on December 19, 2000, the corresponding Federal regulation at 30 CFR 778.14(c) no longer requires violation information for a person who is deemed or presumed to own or control the applicant. However, we find that Indiana's revision will not make its program less effective than the Federal regulations.

Indiana also added a provision to 312 IAC 25-4-18(a)(3) and 25-4-59(a)(3) that requires an applicant to certify that violations for which abatement periods have not expired are in the process of being abated. We find that Indiana's requirement is substantively similar to and therefore no less effective than the corresponding Federal regulation requirement at 30 CFR 778.14(c)(7).

Based on the above discussion, we are approving the revisions to 312 IAC 25-4-18(a)(3) and 25-4-59(a)(3). However, as noted above in finding C, on December 19, 2000, we made numerous revisions to the counterpart Federal regulations. When we conduct a comparison of those rules in their entirety with the Indiana rules in their entirety, we may identify additional changes that Indiana will need to make for its program to remain no less effective than the Federal regulations. If we identify any such changes, we will notify Indiana in accordance with 30 CFR 732.17(d) and (e).

c. Indiana added the following new provision at 312 IAC 25-4-59(b):

We find that Indiana's rule at 312 IAC 25-4-59(b) contains substantively the same requirements for updating information as the counterpart Federal regulation at 30 CFR 778.9(d). Therefore, it is no less effective than the Federal regulation, and we are approving its addition to the Indiana program.

Indiana added 312 IAC 25-4-118 to specify the conditions under which a permit is issued. Section 25-4-118(1) requires the permittee to conduct surface coal mining and reclamation operations only on those lands that are specifically designated as the permit area and bonded. Section 25-4-118(2) requires the permittee to conduct operations only as described in the approved application, except to the extent otherwise directed in the permit. Section 25-4-118(3) requires the permittee to comply with the terms and conditions of the permit and all applicable performance standards and requirements of the Indiana program. Section 25-4-118(4) requires permittees to allow authorized representatives of the Director of the Indiana Department of Natural Resources to have right of entry to surface coal mining and reclamation operations for inspections, monitoring, and enforcement and to be accompanied by private persons when the inspection is in response to an alleged violation reported by a private person. Section 25-4-118(5) requires the permittee to take all possible steps to minimize adverse impacts to the environment or public health and safety resulting from a noncompliance with any term or condition of the permit. Section 25-4-118(6) requires the permittee to comply with the requirements of the Indiana program for compliance, modification, or abandonment of existing structures. Section 25-4-118(7) requires the operator to pay all reclamation fees. Section 25-4-118(8) requires the permittee to submit updates, if any, to the information previously submitted under 312 IAC 25-4-17(c) within 30 days after a cessation order is issued under 312 IAC 25-7-5, except where a stay of the cessation order is granted and remains in effect.

We find that, with the exception of the proposed provision in subdivision (4), 312 IAC 25-4-118(1) through (7) are substantively identical to and therefore no less effective than the counterpart Federal regulation at 30 CFR 773.17. We also find that the post-permit issuance information requirements of 312 IAC 25-4-118(8) are substantively the same as and therefore no less effective than the requirements of the Federal regulation at 30 CFR 774.12(a) and (b).

However, Indiana's rule at 312 IAC 25-4-118(4) only requires permittees to allow authorized representatives of the Director of the Indiana Department of Natural Resources to have right of entry to surface coal mining and reclamation operations for inspections, monitoring, and enforcement and to be accompanied by private persons under specified conditions. The counterpart Federal regulation at 30 CFR 773.17(d) requires permittees to allow authorized representatives of the State regulatory authority and the Secretary of the Interior to have right of entry and to be accompanied by private persons under the same specified conditions.

For the reasons discussed above, we are approving 312 IAC 25-4-118(1) through (8). However, we are requiring Indiana to revise 312 IAC 25-4-118(4) or otherwise modify its program to require permittees to allow authorized representatives of the Secretary of the Interior to have right of entry to surface coal mining and reclamation operations for purposes of inspections, monitoring, and enforcement and to be accompanied by private persons under specified conditions.

Indiana's rule at 312 IAC 25-4-17 specifies the information that must be included in a surface mining permit application for identification of interests. Indiana made nonsubstantive revisions to the previously approved provisions in this section to comply with formatting guidelines set forth by the Indiana Legislative Services Agency. However, in recodifying subsections (d), (e), and (f), Indiana inadvertently removed language that required an applicant to submit the information in subsections (d), (e), and (f) with an application. Therefore, while we are generally approving the recodified version of Indiana's rule as having no changes that would cause the State program to be less effective than the corresponding Federal regulation, we are requiring Indiana to revise 312 IAC 25-4-17(d), (e), and (f) to clarify that the information listed in those subsections must be submitted with the permit application.

Indiana recodified its previously approved general requirements for reclamation plans at 312 IAC 25-4-45. We find that, with one exception, the recodified rule is substantively the same as and therefore no less effective than the counterpart Federal regulation at 30 CFR 780.18. In the recodification process, Indiana removed “total depth” as one of the factors that an operator is to evaluate to demonstrate the suitability of topsoil substitutes or supplements at 312 IAC 25-4-45(b)(4). We consider “total depth” to be one of the factors that must be evaluated to demonstrate the suitability of topsoil substitutes or supplements. Therefore, we are approving 312 IAC 25-4-45 with the requirement that Indiana revise 312 IAC 25-4-45(b)(4) to require the demonstration of the suitability of topsoil substitutes or supplements to also be based upon analysis of the “total depth” of the different kinds of soils.

Indiana recodified its previously approved provisions concerning public availability of permit application information at 312 IAC 25-4-113 with two exceptions: (1) Indiana did not recodify previously approved language that allows a person to oppose or seek disclosure of confidential information; and (2) Indiana did not recodify a previously approved provision concerning the confidentiality of information on the nature and location of archaeological resources on public and Indian land. These omissions have the effect of removing those provisions from the Indiana program.

Apart from the two noted exceptions, Indiana's rule at 312 IAC 25-4-113 contains substantively the same requirements for public availability of permit application information as the counterpart Federal regulation at 30 CFR 773.6(d). Therefore, we find that, apart from those exceptions, the Indiana rule is no less effective than the Federal regulation.

For the reasons discussed above, we are both approving 312 IAC 25-4-113 and requiring Indiana to (1) add language at 312 IAC 25-4-113(f) or otherwise revise its program to allow a person to oppose or seek disclosure of confidential information and (2) add a provision, consistent with 30 CFR 773.6(d)(3)(iii), that classifies information on the nature and location of archeological resources on public land and Indian land as qualified confidential information in accordance with the Archeological Resources Protection Act of 1979.

On August 24, 2001, as required by section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1714). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Indiana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

As required by 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IND-1714). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP for amendments that may have an effect on historic properties. On August 24, 2001, we requested comments on Indiana's amendment (Administrative Record No. IND-1714), but we received no response to our request.

We requested public comments on the proposed amendment, but we did not receive any.

Based on the above findings, we approve, with additional requirements, the amendment as sent to us by Indiana on August 21, 2001. Findings C.3, D, E, and F discuss the additional changes that we are requiring in 312 IAC 25-4-118, 25-4-17, 25-4-45, and 25-4-113.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 914, which codify decisions concerning the Indiana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Indiana program, we will recognize only the statutes, regulations and other materials approved by the Secretary or by us, together with any consistent implementing policies, directives and other materials. We will require the enforcement by Indiana of only those provisions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of this criteria, the Secretary of the Interior conditionally approved the North Dakota program on December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.15, and 934.30.

By letter dated May 9, 2001, North Dakota sent us an amendment to its program (Amendment number XXXI), administrative record No. ND-FF-01) under SMCRA (30 U.S.C. 1201 et seq. ). North Dakota sent the amendment to make changes at its own initiative.

We announced receipt of the proposed amendment in the June 6, 2001 Federal Register (66 FR 30347). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (administrative record No. ND-FF-04). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on July 5, 2001. We received one comment from the public and two comments from Federal agencies.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

North Dakota proposed minor wording and editorial changes in its Senate Bill 2424 to the following previously-approved statute:

Section 4. Amendment. NDCC 38-14.1-10. Necessity of Permit—Exception.

Changes the name of the State Historical Board to the State Historical Society and the name of the superintendent to the director. Changes two “prior tos” to “before.” Changes “Any person or operator may engage in the inventorying and evaluation of cultural resources * * *.” to “A person or operator shall * * *.” A few other minor changes were made.

Section 5. Amendment. NDCC 38-14.1-14.u. Cultural resource information including all of the following:

Changes in five places, “superintendent” to “director.”

Changes in one place, “board” to “society.”

Section 6. Amendment. NDCC 38-14.1-21.2. Approval or modification of the permit or permit revision application.

Changes “board” to “society.”

Changes “shall” to “must.”

Section 7. Amendment. NDCC 38-14.1-30.1. Right to administrative review on rulings.

Changes “board” to “society.” Changes “superintendent” to “director.” Miscellaneous very minor editorial changes.

Section 8. Amendment. NDCC 38-14.1-37.2.d. Collection of cultural resource information.

Changes “board” to “society” and changes “superintendent” to “director.”

Because all of the aforementioned changes are minor, we find that they will not make North Dakota's statutes less stringent than SMCRA.

We asked for public comments on the amendment (administrative record No. ND-FF-03) and received one comment letter as a result: a June 15, 2001, letter from the North Dakota State University Extension Service stating that it is in agreement with the proposed amendment.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the North Dakota program (administrative record No. ND-FF-03). Two comment letters from Federal agencies were received.

On May 24, 2001, the Natural Resources Conservation Service sent us a letter (administrative record No. ND-FF-05) stating that it did not have any comments.

On June 12, 2001, the U.S. Fish and Wildlife Service sent a letter (administrative record No. ND-FF-06) stating it does “not anticipate any significant impacts to fish and wildlife resources as a result of the proposed amendment.”

Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (administrative record No. ND-FF-03). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On May 18, 2001, we requested their comments on North Dakota's amendment (administrative record No. ND-FF-03), but neither responded to our request.

Based on the above findings, we approve the amendment sent to us by North Dakota on May 9, 2001.

To implement this decision, we are amending the Federal regulations at 30 CFR part 934.15, which codify decisions concerning the North Dakota program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process.

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

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

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

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

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

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

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

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

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

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

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

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

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

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq. ) that this rule will not impose a cost of $100 million or more in any given year on any local, State, or Tribal governments or private entities.

Section 503(a) of SMCRA permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *” and “rules and regulations consistent with regulations issued by the Secretary” pursuant to the Act. 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the July 30, 1982, Federal Register (47 FR 33050). Subsequent actions concerning the Pennsylvania program and previous amendments are codified at 30 CFR 938.11, 938.12, 938.15 and 938.16.

By letter dated January 3, 2001, (Administrative Record Number PA 848.25), the Pennsylvania Department of Environmental Protection (PADEP) submitted legislation consisting of excerpts of House Bill 393 regarding attorney costs and expenses associated with administrative legal proceedings relating to coal mining for Secretarial approval. House Bill 393 amends Title 27 of the Pennsylvania Consolidated Statutes by adding section 7708 titled, “Costs for Mining Proceedings.”

The full text of Pennsylvania's submission was published in the February 15, 2001, Federal Register (66 FR 10405). The public comment period closed on March 19, 2001. OSM received two comments. No one requested an opportunity to speak at a public hearing, so no hearing was held.

Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Secretary's findings concerning the legislation submitted by Pennsylvania.

Section 1 of House Bill 393 amends Title 27 of the Pennsylvania Consolidated Statutes by adding Chapter 77, “Costs and Fees,” section 7708. Section 7708 (a) states that purpose of the section is to “provide costs and fees to the same extent of section 525(e) of the Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. 1201 et seq. ) and the regulations promulgated pursuant thereto.” The Secretary finds that this portion of the legislation is in keeping with the requirements of the program condition at 30 CFR 938.11 that requires Pennsylvania to submit legislation in accordance with section 525(e) of SMCRA. The Secretary is approving this portion of the submission.

Section 7708 (b) provides that, “Any party may file a petition for award of costs and fees reasonably incurred as a result of that party's participation in any proceeding involving coal mining activities which results in a final adjudication being issued by the Environmental Hearing Board or a final order being issued by an appellate court.” The Secretary finds that this provision is consistent with the provision in the Federal regulations at 43 CFR 4.1290. The Secretary is approving this portion of the submission.

Section 7708 (c) defines who may receive an award. Subsection (1) defines the circumstances under which appropriate costs and fees may be awarded to any person from the permittee. This section is substantively identical to the provisions in the Federal regulations at 43 CFR 4.1294(a). The Secretary is approving this portion of the submission.

Subsection (2) defines the circumstances under which appropriate costs and fees may be awarded to any party, other than a permittee or his representative, from the department. This section is substantively identical to the provisions in the Federal regulations at 43 CFR 4.1294(b). The Secretary is approving this portion of the submission.

Subsection (3) provide that costs and fees may be awarded to a permittee from the department when the permittee demonstrates that the department in a matter concerning coal mining activities issued an order of cessation, a compliance order or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee. This section is substantively identical to the provisions in the Federal regulations at 43 CFR 4.1294(c). The Secretary is approving this portion of the submission.

Subsection (4) defines the circumstances under which appropriate costs and fees may be awarded to a permittee from any party. This section is substantively identical to the provisions in the Federal regulations at 43 CFR 4.1294(d). The Secretary is approving this portion of the submission.

Section 7708(d) defines the time for petitions for an award of costs. This section requires the petitions to be filed with the Environmental Hearing Board within 30 days of the date an adjudication of the Environmental Hearing Board becomes final. The Federal regulations at 43 CFR 4.1291 require petitions to be filed within 45 days of receipt of a final order. While the Pennsylvania provision allows less time for the filing of these petitions, the Secretary finds that 30 days is still a reasonable allotment of time. Moreover, the deadline will apply to both citizens and coal operators, and is therefore even-handed on its face. As such, the Secretary finds that subsection (d) is no less effective than its Federal counterpart in ensuring that parties have an adequate opportunity to petition the appropriate tribunal for an award of costs and fees, and it is therefore approved.

Section 7708(e) states the requirements for the contents of a petition. The requirements are substantively identical to the requirements of the Federal regulations at 43 CFR 4.1292(a)(1) through (3). The Secretary is approving this portion of the submission.

Section 7708(f) provides that any party shall have 30 days from service of the petition within which to file an answer to such petition. This section is substantively identical to the Federal regulation at 43 CFR 4.1293. The Secretary is approving this portion of the submission.

Section 7708(g) states, “Except for section 601 of the act of June 22, 1937 (P.L.1987, No.394), known as the Clean Streams Law, Section 18.3 of the act of May 31, 1945 (P.L.1198, No.418), known as the Surface Mining Conservation and Reclamation Act, Section 13 of the Act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1), known as the Bituminous Mine Subsidence and Land Conservation Act and Section 13 of the act of September 24, 1968 (P.L.1040, No.318), known as the Coal Refuse Disposal Control Act, this section shall be the exclusive remedy for the awarding of costs and fees in proceedings involving coal mining activities.” The sections of the various laws excluded in section 7708(g) refer to citizen suits. Section 520 of SMCRA provides for citizen suits, and subsection (f) of this section allows persons to bring actions for damages, including attorney fees and expert witness fees, in the event of personal or property injury caused by a violation of SMCRA. Section 7708(g) merely preserves this independent basis for seeking awards of costs and attorney fees incurred in citizen suits. Accordingly, the Secretary finds that this portion of the submission does not make the submission as a whole inconsistent with SMCRA or the Federal regulations regarding petitions for awards and costs and is approving this section.

Section 7708(h) provides definitions for terms used in this section. The language states:

The Secretary finds that the definitions of the terms, “coal mining activities,” “coal mining acts,” “costs and fees,” “Department,” and “proceeding” do not make the submission inconsistent with the Federal regulations and is approving those definitions.

We note that this submission lacks a specific counterpart to the Federal regulations at 43 CFR 4.1295(b), which states that an award may include “all costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award* * *” However, section 7708(a) states that the purpose of section 7708 is to “provide costs and fees to the same extent of section 525(e) of the Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. 1201 et seq. ) and the regulations promulgated pursuant thereto.” Also, while section 7708(b) sets forth a general rule that a party may file a petition for costs and fees as a result of any “proceeding involving coal mining activities,” and while the definition of “proceeding” contained in section 7708(h) does not expressly include fee petition proceedings, the general rule does not appear to prevent the Environmental Hearing Board from complying with the above-stated purpose of section 7708 by awarding costs and fees reasonably incurred in seeking the award for the underlying proceeding. Thus, the Secretary finds that section 7708 provides the Environmental Hearing Board with the authority to award all costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

Section 2 of House Bill 393 repeals sections of several Pennsylvania mining laws. Specifically, the following sections are repealed:

The fifth sentence of section 4(b) and subsection (f)(5) of section 4.2 of the act of May 31, 1945 (P.L. 1198, No. 418), known as the Surface Mining Conservation and Reclamation Act. The fifth sentence of section 4(b) states, “The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines to have been reasonably incurred by such party in proceedings pursuant to this section.” Subsection (f)(5) states, “A surface mining operator or owner who provides a successful defense to the presumptions of liability shall be entitled to recover the costs incurred, including, but not limited to, the costs of temporary water supply, design, construction, restoration or replacement costs, attorney fees and expert witness fees from the department.”

The last sentence of section 5(g) of the act of April 27, 1966 (1st Sp. Sess., P.L. 31, No. 1), known as the Bituminous Mine Subsidence and Land Conservation Act. This sentence states, “The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines have been reasonably incurred by such party (sic) proceedings pursuant to this section.”

The last sentence of section 5(i) of the act of September 24, 1968 (P.L. 1040, No. 318), known as the Coal Refuse Disposal Control Act. This sentence states, “The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines to have been reasonably incurred by such party in proceedings pursuant to this section.”

In addition, section 2(b) of House Bill 393 indicated that, “All other acts and parts of acts are repealed insofar as they are inconsistent with this act.”

The Secretary is approving the repeal of the above noted statute sections. Repeal of these sections, in conjunction with the addition of the new section 7708, does not make this submission inconsistent with the Federal regulations.

Section 3 of House Bill 393 states, “The addition of 27 Pa.C.S. Section 7708 shall apply to all proceedings and petitions for costs and fees filed after the effective date of this act.” The Secretary finds that this section is not inconsistent with SMCRA or the Federal regulations, and is therefore approving it.

Section 4 of House Bill 393 provides that:

The Secretary finds that this section is not inconsistent with SMCRA or the Federal regulations, and is therefore approving it.

On January 31, 2001, we asked for comments from various Federal agencies who may have an interest in the Pennsylvania submission (Administrative Record Number PA 848.26). We solicited comments in accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations.

The U.S. Department of Labor, Mine Safety and Health Administrative (MSHA) commented that Title 27, Environmental Resources of the Pennsylvania Consolidated Statutes, is consistent with requirements of section 525(e) of the Surface Mining Control and Reclamation Act of 1977.

No other Federal agency comments were received.

Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program submission that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). We have determined that this submission contains no such provisions, thereby rendering EPA concurrence unnecessary. By letter dated January 31, 2001, we requested comments from EPA on the State's proposed submission of January 3, 2001, (Administrative Record Number PA 848.26). EPA responded on April 11, 2001, (Administrative Record Number PA 848.29) by noting that it had no comments on the submission.

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

Based on the findings above we are approving Pennsylvania's submission and removing the condition codified at 30 CFR 938.11(i).

The Federal regulations at 30 CFR Part 938 codifying decisions concerning the Pennsylvania program are being amended to implement this decision. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. Consistency of State and Federal standards is required by SMCRA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Table 1 lists the rules we are approving with the dates that they were adopted by local air agencies and submitted by the California Air Resources Board (CARB).

On May 15, 1996, October 20, 1999, and May 19, 2000 these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

There is no previous version of SJVUAPCD Rule 4304 in the SIP. EPA approved an earlier version of Rule 4452, numbered 464.2, which was adopted locally on April 11, 1991. We approved a version of SCAQMD Rule 1121 adopted on March 10, 1995.

SJVUAPCD Rule 4304 provides tuning procedures for boilers, steam generators, and process heaters to control visible emissions, and both nitrogen oxide (NO X ) and carbon monoxide (CO) emissions.

SJVUAPCD amended Rule 464.2, is renumbered as Rule 4452. The amendments provide administrative changes, normalize format, and unify numbering system. They are not substantive in nature. The provisions of existing SCAQMD Rule 1121 are amended to establish reduced emission limits of nitrogen oxides from new residential type, natural gas-fired water heaters that are sold or installed in residential or commercial establishments.The TSDs have more information about the rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193).

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

1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO X Supplement), 57 FR 55620, November 25, 1992.

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

3. September 20, 1999 memo regarding state implementation plans: policy regarding excess emissions during malfunctions, startup, and shutdown, U.S. EPA, Office of Air Quality Planning and Standards.

We believe the rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSDs have more information on our evaluation.

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

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by December 17, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on January 15, 2002. This will incorporate the rules into the federally enforceable SIP.

NO X and VOC help produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NO X and VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency rules.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 15, 2002. 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).)

Section 112(l) of the Clean Air Act, as amended in 1990 (CAA), authorizes EPA to delegate to state or local air pollution control agencies the authority to implement and enforce the standards set out in 40 CFR part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories. On November 26, 1993, EPA promulgated regulations, codified at 40 CFR part 63, subpart E (hereinafter referred to as “subpart E”), establishing procedures for EPA's approval of state rules or programs under section 112(l) ( see 58 FR 62262). Subpart E was later amended on September 14, 2000 ( see 65 FR 55810).

Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and subpart E. To streamline the approval process for future applications, a state or local agency may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the state or local agency would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program.

On July 17, 1998, EPA published a direct final action delegating to the Arizona Department of Environmental Quality (ADEQ) several NESHAPs and approving ADEQ's delegation mechanism for future standards (see 63 FR 38478). That action explained the procedure for EPA to grant delegations to ADEQ by letter, with periodic Federal Register listings of standards that have been delegated. On January 5, 2001, ADEQ requested delegation of the following NESHAPs contained in 40 CFR part 63:

On March 5, 2001, EPA granted delegation to ADEQ for these NESHAPs. EPA also delegated to ADEQ any amendments to previously-delegated NESHAPs, as of July 1, 1999. Today's action is serving to notify the public of the March 5, 2001, delegation and to codify these delegations into the Code of Federal Regulations.

Today's document serves to notify the public that on March 5, 2001, EPA granted delegation to ADEQ for the NESHAPs listed above, as well as any amendments to previously-delegated NESHAPs as of July 1, 1999. Today's action will codify these delegations into the Code of Federal Regulations.

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 updates the list of approved delegations in the Code of Federal Regulations and imposes no additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule does not impose any 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 updates the list of already-approved delegations, 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 state delegation submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), we have no authority to disapprove state submissions for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews state submissions, to use VCS in place of state submissions that otherwise satisfy the provisions of the CAA. 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. We will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 15, 2002. 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)).

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301191. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of August 14, 1998 (63 FR 43708) (FRL-6019-8), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170) announcing the filing of a pesticide petition (PP 5E4487) by Huntsman Petrochemical Corporation, 3040 Post Oak Blvd., Houston, TX 77056. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001(c) be amended by establishing an exemption from the requirement of a tolerance for residues of [poly[oxy(methyl-1,2-ethanediyl)], α -[2-bis(2-hydroxyethyl)amino]propyl]- ω -hydroxy,-ether with α -hydro- ω -hydroxypoly(oxy-1,2-ethanediyl) (1:2), mono-C 12-16 alkyl ethers (CAS Reg. No. 176022-82-5).

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by linear alkyl C 12-16 propoxyamine ethoxylate were evaluated by two methods: A process known as structure activity relationship (SAR) assessment and review and evaluation of submitted data.

Linear alkyl C 12-16 propoxyamine ethoxylate is an inert ingredient. To the best of the Agency's knowledge, linear alkyl C 12-16 propoxyamine ethoxylate has no active ingredient properties; therefore, the complete 40 CFR part 158 data base has not been required. For linear alkyl C 12-16 propoxyamine ethoxylate, toxicity was assessed, in part, by the SAR process. In this process, the chemical's structural similarity to other chemicals (for which data are available) is used to determine toxicity. For human health, this process, can be used to assess absorption and metabolism, mutagenicity, carcinogenicity, developmental and reproductive effects, neurotoxicity, systemic effects, immunotoxicity, and sensitization and irritation. This is a qualitative assessment using terms such as good, not likely, poor, moderate, or high.

For linear alkyl C 12-16 propoxyamine ethoxylate the SAR assessment determined that the chemical was not structurally related to any known carcinogens or developmental/reproductive toxicants. The following human exposures were examined as part of the analysis: inhalation, dermal, exposures to the eyes, and drinking water. There were concerns for irritation to eyes, skin, lungs, and mucous membranes. Overall, the level of concern for human health was characterized as low to moderate. Absorption was rated as poor through the skin, good through the lungs, and moderate through the gastrointestinal tract.

1. Acute oral toxicity - rat . Lethal Dose (LD 50 ) for combined sexes is from 1,154 to 1,993 milligrams/kilograms (mg/kg). Clinical effects observed in both sexes included decreased activity, poor grooming, abnormal stance and gait, diarrhea, dyspnea, chromodacryorrhea, decreased muscle tone, lacrimation, and prostration. (Toxicity Category III).

2. Acute dermal toxicity - rabbit . The observed lethal dose for males and females is greater than 2,000 mg/kg. Clinical signs of toxicity included abnormal gait, abnormal stance, unspecified alopecia, decreased muscle tone, salivation, decreased activity, and poor grooming. (Toxicity Category III).

3. Primary eye irritation - rabbit . It was determined that the test substance was a severe but reversible ocular irritant. (Toxicity Category II).

4. Primary dermal irritation - rabbit . Several dermal irritations characterized by severe erythema and edema, necrosis, fissuring, and sloughing of the epidermis was observed. (Toxicity Category II).

5. Dermal sensitization - guinea pig . It was observed that the test substance was a dermal sensitizer.

6. Subchronic oral toxicity feeding - rats . The no observable adverse effect level (NOAEL) is 1,000 ppm in males (equivalent to 58.9 mg/kg/day) and 500 ppm (equivalent to 35.4 mg/kg/day) in females. The lowest observable adverse effect level (LOAEL) is 3,000 ppm (equivalent to 173.6 mg/kg/day) in males and 1,000 ppm (equivalent to 68.9 mg/kg/day) in females based on decreased body weight gain.

7. 90-Day feeding capsule - dog . The NOAEL is 10 mg/kg/day. The LOAEL is 30 mg/kg/day based on clinical signs of toxicity in females and decreased body weight gain in males.

8. Oral developmental toxicity - rats . The test material was administered by gavage to pregnant rats on gestation days 6 through 15. The maternal NOAEL is 25 mg/kg/day. The maternal LOAEL is 75 mg/kg/day, based on clinical signs of toxicity and reductions in body weight, body weight gains, and food consumption. The developmental NOAEL is 75 mg/kg/day. The developmental LOAEL is 150 mg/kg/day, based on decreased fetal weights and increases in incidences of skeletal variation related to decreased ossification.

9. In vitro mammalian cytogenetics - chromosome aberrations in human lymphocytes . There were no statistically significant increases in chromosome abberations at any dose level with or without metabolic activation. No mutagenic concerns were demonstrated.

10. Salmonella typhimurium and Escherichia coli mammalian activation reverse gene mutation assay . There were no statistically significant differences in the number of revertant colonies in any tester strain at any dose level or condition. No mutagenic concerns were demonstrated.

1. Acute dietary toxicity . For an acute dietary risk assessment, the Agency selected a developmental NOAEL of 75 mg/kg/day from the developmental toxicity study in the rat. The LOAEL is 150 mg/kg/day.

2. Short-term dermal toxicity . For a short-term dermal risk assessment, the Agency selected a developmental NOAEL of 75 mg/kg/day from the developmental toxicity study in the rat. The LOAEL is 150 mg/kg/day.

3. Intermediate- and long-term dermal toxicity . For intermediate- and long-term dermal risk assessment, the Agency selected a NOAEL of 10 mg/kg/day from a 90-day toxicity study in dogs (capsules). The LOAEL is 30 mg/kg/day.

4. Short-term inhalation . For a short-term inhalation risk assessment, the Agency selected a NOAEL of 75 mg/kg/day from the developmental study in the rat. The LOAEL is 150 mg/kg/day.

5. Intermediate- and long-term inhalation . For an intermediate- and long-term inhalation risk assessment, the Agency selected a NOAEL of 10 mg/kg/day from a 90-day toxicity study in the dog (capsules). The LOAEL is 30 mg/kg/day.

6. Chronic dietary toxicity . For a chronic dietary risk assessment, the Agency selected a NOAEL of 10 mg/kg/day from the 90-day dog (capsule) study. The LOAEL is 30 mg/kg/day.

7. No dermal studies or dermal absorption data were submitted . However, the SAR analysis rated absorption through the skin as poor. Therefore, a dermal absorption factor of 10% will be used.

8. No inhalation studies were submitted . However, the SAR assessment rated absorption through the lungs as good. Therefore, an inhalation absorption factor of 100% will be used.

The SAR assessment rated linear alkyl C 12-16 propoxyamine ethoxylate as a low to moderate toxicity chemical. Linear alkyl C 12-16 propoxyamine ethoxylate is a surfactant, that is, a chemical used to modify the nature of a surface, such as reducing the surface tension of water. Surfactants can be used as wetting agents, detergents, penetrants, and emulsifiers. However, it is believed that the low to moderate rating is indicative of the known properties of a surfactant, not necessarily of the toxicological effects unique to linear alkyl C 12-16 propoxyamine ethoxylate. By their very nature, surfactants are often corrosive and irritating. The effects displayed in the reviewed studies (decreased body weight gain, and possibly even the salivation) were probably due to the corrosion/irritation factor and not to other mechanisms of toxicity. The findings of the SAR assessment did not conflict with the data reviews.

Based on the SAR assessment, and review and evaluation of the submitted data, the Agency concludes that linear alkyl C 12-16 propoxyamine ethoxylate is a low/moderate toxicity chemical with the demonstrated effects consistent with the characteristics of a surfactant. No other effects of concern were noted. No additional toxicity data are required.

1. Safety factors . The Agency will use the NOAELs and LOAELs in Unit IV.C. to assess the risks of using linear alkyl C 12-16 propoxyamine ethoxylate to the general population and certain subgroups of the general population. However, the Agency first modifies these values numerically downward by dividing the NOAEL by two or more safety factors. The safety (uncertainty) factors used are: A 10-fold factor to account for intraspecies variability (the differences in how the test animals reacted to the test substance) and a 10-fold factor to account for interspecies variation (the use of animal studies to predict human risk).

2. Acute dietary toxicity . The Agency divided the NOAEL by 100 (10X interspecies extrapolation, 10X intraspecies variation) to calculate the acute Population Adjusted Dose (aPAD). The aPAD is the quantity of a substance which if consumed in a single day is not expected to pose significant risk of adverse health effects. For linear alkyl C 12-16 propoxyamine ethoxylate the aPAD is equal to 0.75 mg/kg/day.

3. Chronic dietary toxicity . The Agency divided the NOAEL of 10 mg/kg/day by 300 (10X interspecies extrapolation, 10X intraspecies variation, and 3X for extrapolating a NOAEL from a subchronic study for a chronic scenario) to calculate the chronic Population Adjusted Dose (cPAD). The cPAD is the quantity of a substance which if absorbed on a daily basis over a lifetime is not expected to pose significant risk of adverse health effects. For linear alkyl C 12-16 propoxyamine ethoxylate the cPAD is equal to 0.03 mg/kg/day.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from groundwater or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

1. Food . No tolerances have been established for linear alkyl C 12-16 propoxyamine ethoxylate. Huntsman Corporation has requested a tolerance exemption for the use of linear alkyl C 12-16 propoxyamine ethoxylate as a surfactant only in glyphosate formulations. Glyphosate is one of the most widely used pesticide chemicals; it is used on a multitude of food crops. There are over 140 glyphosate tolerances which include major food crops, such as wheat, soybeans, and corn, as well as other widely-consumed foods such as potatoes, peanuts, and all bulb, cucurbit, fruiting, and leafy vegetables. Thus, a pesticide formulation containing glyphosate as the active ingredient and linear alkyl C 12-16 propoxyamine ethoxylate as an inert ingredient, a surfactant, has the potential for being used on this multitude of food crops.

There are no field trial data or monitoring data available for residues of linear alkyl C 12-16 propoxyamine ethoxylate, which is the Agency's traditional source of exposure data for conducting a quantitative dietary risk assessment. The Agency has estimated residue levels for linear alkyl C 12-16 propoxyamine ethoxylate using a ratio of linear alkyl C 12-16 propoxyamine ethoxylate to glyphosate in the formulated product. Thus, the glyphosate tolerance level residues were adjusted using this ratio to estimate linear alkyl C 12-16 propoxyamine ethoxylate residues. It should be noted that the glyphosate tolerance level residues are considered to be conservative exposure estimates which assume that 100% of the crops having glyphosate tolerances receive an application of glyphosate and that all residue levels are at the maximum legally permissible level. It is unlikely that either or both of these assumptions would actually occur, thus leading to the conservative nature of the exposure estimates. Using a ratio to adjust the glyphosate tolerance level residues to linear alkyl C 12-16 propoxyamine ethoxylate residue levels is a reasonable approach for this assessment for the following reasons:

Many of the uses of glyphosate are pre-emergent (i.e., take place prior to planting or emergence of the crop) and typically result in non-detectable residues of glyphosate in the harvested commodities. Although data indicate that linear alkyl C 12-16 propoxyamine ethoxylate is longer-lived in the environment than glyphosate, residues of linear alkyl C 12-16 propoxyamine ethoxylate resulting from pre-emergent uses are also expected to be non-detectable since unlike glyphosate, linear alkyl C 12-16 propoxyamine ethoxylate is not expected to be systemic (i.e., not able to translocate through the plant to the crop commodity). The non-systemic nature of the surfactant, that is, its inability to translocate in and of itself offers a wide margin of protection.

Some uses of glyphosate are post-emergent (i.e., made after the crops emerge). Most of these applications are for the purpose of desiccation of the crops to aid harvest. These have fairly short preharvest intervals (PHIs), which is the mandated wait period, usually given in number of days, from application of the pesticide to harvest. A short PHI means that there may be insufficient time for the applied chemicals to metabolize/degrade and therefore can still be present in significant quantities at the time of harvest. The glyphosate tolerances that result from these short PHIs, once adjusted by the ratio methodology to be linear alkyl C 12-16 propoxyamine ethoxylate residue levels are not likely to significantly underestimate dietary (food) exposure to linear alkyl C 12-16 propoxyamine ethoxylate.

The methodology by which these residue levels were estimated (ratio in formulation, conservative assumptions of 100% crop treated and maximum legally permissible residue levels) should not underestimate residue levels of linear alkyl C 12-16 propoxyamine ethoxylate since: (a) For pre-emergent applications linear alkyl C 12-16 propoxyamine ethoxylate is not expected to translocate through the plant to the crop commodity, and thus, as explained, should result in non-detectable residues; and (b) for post-emergent uses given the lack of time for metabolism/degradation to occur for either glyphosate or linear alkyl C 12-16 propoxyamine ethoxylate, the persistence of linear alkyl C 12-16 propoxyamine ethoxylate is not a significant factor and the estimated residue levels should not underestimate food exposure to linear alkyl C 12-16 propoxyamine ethoxylate.

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single event exposure. The Agency has conducted Tier 1 acute food exposure assessments for linear alkyl C 12-16 propoxyamine ethoxylate using the Dietary Exposure Evaluation Model (DEEM®). This model incorporates consumption data generated in USDA's Continuing Surveys of Food Intakes by Individuals (CSFII), 1989-1992. For this acute food risk assessment, the entire distribution of single day food consumption events is combined with a single residue level (deterministic analysis) to obtain a distribution of exposure in mg/kg/day. For a Tier 1 analysis, the Agency generally considers exposure at the 95th percentile to be representative of high end exposure. The Agency's level of concern is for exposures greater than 100% of the aPAD. For the population subgroup of concern, females 13-50 years, at the 95th percentile, the dietary exposure is 2% of the aPAD.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the DEEM® analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide CSFII and accumulated exposure to the chemical for each commodity. For chronic food risk assessments, the 3-day average consumption for each subpopulation is combined with residues in commodities to determine average exposure in mg/kg/day. In performing the chronic dietary risk assessment, the Agency's level of concern is for exposures greater than 100% cPAD. The population groups with the highest percentages are children (1-6 years old) (54%), all infants ( < 1 year) (51%), children (7-12 years old) (36%), total U.S. population (25%), and females (13-50 years) (19%).

2. Drinking water exposure . Given the limited environmental fate information, qualitatively linear alkyl C 12-16 propoxyamine ethoxylate can be described as a chemical that is moderately persistent to persistent based on complete minerization (metabolism to carbon dioxide, water and basic minerals), has intermediate mobility (estimated K oc ranging from 630 to 6,300) with respect to runoff in water and eroding soil/sediment, and is possibly a compound which has significant potential to bioconcentrate based on an estimated partition coefficient between water and octanol (K ow ).

The Agency lacks sufficient monitoring exposure data to complete comprehensive dietary exposure analysis and risk assessment for linear alkyl C 12-16 propoxyamine ethoxylate. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the characteristics of linear alkyl C 12-16 propoxyamine ethoxylate.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a % PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses.

In lieu of submitted environmental fate studies on linear alkyl C 12-16 propoxyamine ethoxylate, the water modeling inputs were estimated based on available fate and transformation data. The assumption ranged from no sorption to soil and no degradation to some sorption and some degradation. Considering the number of crops on which glyphosate is used, a percent crop area adjustment was not used. To model Tier 1 surface water concentrations, the Agency uses the FQPA Index Reservoir Screening Tool (FIRST) to calculate the concentrations used in the drinking water assessment. It represents a small drinking water reservoir surrounded by a run-off prone watershed. FIRST estimates expected concentrations from a few basic chemical parameters and pesticide label application information. It is a Tier 1 model which uses a chemical's soil/water partition coefficient and degradation half-life values to estimate runoff from an agricultural field into a drinking water reservoir. FIRST considers reductions in dissolved pesticide concentration due to adsorption of pesticide to soil or sediment, incorporation, degradation in soil before wash off to a water body, direct deposition of spray drift into the water body, and degradation of the pesticide within the water body.

Using FIRST, the estimated acute concentrations for surface water ranged from 43 to 185 μg/L. The estimated chronic concentrations from surface water ranged from 6 to 133 μg/L. Both ranges include an estimate with the assumption that the chemical is stable to biotic and abiotic processes and infinitely mobile. Reasonable high-end estimates of exposure based on a metabolism half-life in soil and water of 110 days and a partition coefficient of 630 mL/g O.C. (organic carbon) are 13 μg/L for a yearly average concentration and 92 μg/L for a peak concentration.

SCI-GROW (Screening Concentration in Ground Water) estimates “worst case” groundwater concentrations of pesticides considering the maximum allowable use rate in an area where the groundwater is exceptionally vulnerable to contamination. The model uses existing environmental fate properties of the chemical being examined, the application rate from the label, and the existing body of data from Agency-required small-scale prospective and two large-scale prospective groundwater monitoring studies for all pesticides. It should be noted that SCI-GROW is biased in the sense that negative data were ignored, i.e., studies where the pesticide was not detected in groundwater were not included in the data set. Thus, it is not expected that SCI-GROW estimates would be exceeded.

With most groundwater sources there are no known predictable seasonal or longer term trends in concentration of pesticide contaminants. Therefore, only one concentration is estimated which should be used for both acute and chronic scenarios. Using SCI-GROW, for groundwater for both acute and chronic effects, the estimated concentration of 0.3 μg/L is based on a metabolism half-life in soil and water of 110 days and a partition coefficient of 630 mL/g O.C.

3. From non-occupational exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure. Linear alkyl C 12-16 propoxyamine ethoxylate will be used in glyphosate formulations, which can be used in and around the home (e.g., lawn, garden, and ornamental uses). Since this is a residential assessment, and given the nature and non-repetitiveness of the exposure only a short-term (1-7days) assessment was performed. The level of concern for residential exposures is a margin of exposure (MOE) of less than 100. A dermal absorption factor of 10% (based on the SAR assessment which rated absorption as poor through the skin) was used. Exposure estimates were generated using the Standard Operating Procedures (SOPs) for Residential Exposure Assessments, which are standardized methodologies for estimating exposures using information such as percent in the formulation. All MOEs for residential uses are greater than 100.

4. Safety factor for infants and children . In assessing the potential for additional sensitivity of infants and children to residues of linear alkyl C 12-16 propoxyamine ethoxylate, EPA considered data from a developmental toxicity study in the rat and the SAR assessment. The SAR assessment did not indicate a concern for developmental or reproductive effects. This assessment which was made on surrogate data, is supported by a rat developmental toxicity study conducted with linear alkyl C 12-16 propoxyamine ethoxylate. A developmental toxicity study is designed to evaluate adverse effects on the developing organism resulting from maternal pesticide exposure gestation. The Agency's review and evaluation of the submitted developmental toxicity study indicated that there was no increase in susceptibility. The maternal NOAEL is 25 mg/kg/day. The developmental NOAEL is 75 mg/kg/day. Thus, the mother would be impacted before the developing fetus.

FFDCA section 408 provides that EPA shall apply an additional 10-fold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. When a quantitative risk assessment is performed for inert ingredients which have no active ingredient uses, the Agency reviews all of the available and reliable data. For linear alkyl C 12-16 propoxyamine ethoxylate, a surfactant that is characterized as having low to moderate toxicity, the Agency believes that the following support the use of the standard uncertainty factor: The SAR assessment does not indicate any concerns for developmental or reproductive effects; and EPA's review and evaluation of the rat developmental toxicity study indicates that there is no increase in susceptibility.

For assessing exposure, estimates were estimated based on data that reasonably accounts for potential exposures. Thus, based on the above rationales, EPA concludes that the 10X safety factor should be removed.

5. Aggregate risks and determination of safety —i. In general . To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a chemical's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a chemical's concentration in drinking water in light of total aggregate exposure to a pesticide chemical in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water (e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment performed. For linear alkyl C 12-16 propoxyamine ethoxylate, these are acute, short-term, and chronic.

When EECs for surface water and groundwater are less than the calculated DWLOCs, the Agency concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which reliable data are available) would not result in unacceptable levels of aggregate human health risk at this time.

ii. Acute risk . As previously discussed in the unit for acute dietary exposure, the acute dietary exposure from food to linear alkyl C 12-16 propoxyamine ethoxylate will occupy 2% of the aPAD for the populations subgroup females 13-50 years. In addition, there is potential for acute dietary exposure to linear alkyl C 12-16 propoxyamine ethoxylate in drinking water. The Agency calculated a DWLOC of 22,000 μg/L which is significantly greater than the 0.3 μg/L estimated for groundwater and 92 μ/L estimated for surface water. Thus, EPA does not expect the acute aggregate exposure to exceed 100% of the aPAD.

iii. Chronic risk. As previously discussed in the unit for chronic dietary exposure, the chronic dietary exposure from food to linear alkyl C 12-16 propoxyamine ethoxylate will occupy 54% of the cPAD for children (1-6 years old), 51% of the cPAD for all infants ( < 1 year), 36% of the cPAD for children (7-12 years old), 25% of the cPAD for the total U.S. population, and 19% of the cPAD for females (13-50 years) (19%). There are no residential uses for linear alkyl C 12-16 propoxyamine ethoxylate that result in chronic residential exposure to linear alkyl C 12-16 propoxyamine ethoxylate. There is a potential for chronic dietary exposure to linear alkyl C 12-16 propoxyamine ethoxylate in drinking water. The Agency calculated DWLOCs of 790 μg/L for adults and 140 μg/L for children. Both are greater than the 0.3 μg/L estimated ground water and the 13 μg/L estimated for surface water. Thus, EPA does not expect the chronic aggregate exposure to exceed 100% of the aPAD.

iv. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). As previously discussed, in the non-occupational exposure unit, there is the potential for residential exposure to linear alkyl C 12-16 propoxyamine ethoxylate. The Agency calculated a DWLOC of 24,000 μg/L for homeowner adult applicators. An adult post-application exposure estimate would be less, thus resulting in a larger DWLOC. The Agency calculated a DWLOC of 7,300 μg/L for post-application exposure for a child. Both are greater than the estimates for surface and groundwater concentrations. Thus, EPA does not expect the short-term aggregate exposure to exceed its level of concern.

Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether linear alkyl C 12-16 propoxyamine ethoxylate has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, linear alkyl C 12-16 propoxyamine ethoxylate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that linear alkyl C 12-16 propoxyamine ethoxylate has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1999).

Based on the SAR assessment as well as the quantitative and qualitative risk assessments conducted using the available data, EPA concluded that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to [poly[oxy(methyl-1,2-ethanediyl)], α -[2-bis(2-hydroxyethyl)amino]propyl]- ω -hydroxy,-ether with α -hydro- ω -hydroxypoly(oxy-1,2-ethanediyl) (1:2), mono-C 12-16 alkyl ethers residues. Critical factors supporting this finding include: Linear alkyl C 12-16 propoxyamine ethoxylate is of low/moderate toxicity. Moreover, the effects displayed in the reviewed studies (decreased body weight gain, and possibly even the salivation) were probably due to the corrosion/irritation factor common to surfactants such as linear alkyl C 12-16 propoxyamine ethoxylate and not to other mechanisms of toxicity generally considered to be of greater concern. The Agency is requiring a limitation on the use of linear alkyl C 12-16 propoxyamine ethoxylate, “not to exceed 15% in the formulated product.” This limitation should be sufficiently protective for the corrosive effects common to surfactants. Further, in performing the dietary assessment the Agency took into account that linear alkyl C 12-16 propoxyamine ethoxylate is to be used in glyphosate products, a pesticide product registered for use on most commonly-consumed foods. Accordingly, the risk assessment assumes that linear alkyl C 12-16 propoxyamine ethoxylate will be present in most commonly-consumed foods. Finally, the residue levels used in performing the food assessment were very conservative (health protective). The conservative assumptions (ratio in formulation, 100% of crop treated and maximum legally permissible residue levels) especially when considered with the non-systemic nature of linear alkyl C 12-16 propoxyamine ethoxylate, and the short PHIs for glyphosate products are considered to produce estimates that do not underestimate food exposure and are likely to substantially overestimate exposure.

Because linear alkyl C 12-16 propoxyamine ethoxylate is unlikely to pose a dietary risk under reasonably foreseeable circumstances, EPA finds that exempting poly[oxy(methyl-1,2-ethanediyl)], α -[2-bis(2-hydroxyethyl)amino]propyl]- ω -hydroxy,-ether with α -hydro- ω -hydroxypoly(oxy-1,2-ethanediyl) (1:2), mono-C 12-16 alkyl ethers from the requirement of a tolerance will be safe.

FQPA requires EPA to develop a screening program to determine whether certain substances, including all pesticide chemicals (both inert and active ingredients), “may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect....” EPA has been working with interested stakeholders to develop a screening and testing program as well as a priority setting scheme. As the Agency proceeds with implementation of this program, further testing of products containing linear alkyl C 12-16 propoxyamine ethoxylate for endocrine effects may be required.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

There are no existing exemptions for linear alkyl C 12-16 propoxyamine ethoxylate.

The Agency is not aware of any country requiring a tolerance for linear alkyl C 12-16 propoxyamine ethoxylate nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Based on the information in this preamble, EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues of linear alkyl C 12-16 propoxyamine ethoxylate. Accordingly, EPA finds that exempting [poly[oxy(methyl-1,2-ethanediyl)], α -[2-bis(2-hydroxyethyl)amino]propyl]- ω -hydroxy,-ether with α -hydro- ω -hydroxypoly(oxy-1,2-ethanediyl) (1:2), mono-C 12-16 alkyl ethers from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301191 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before January 15, 2002.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301191, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, 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). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 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.

We conclude that New York's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant New York Final authorization to operate its hazardous waste program with the changes described in the authorization application. New York has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in New York, including issuing permits if necessary, until the State is granted authorization to do so.

The effect of this decision is that a facility in New York subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. New York has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003. These sections include, but may not be limited to, the authority to:

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

• Enforce RCRA requirements and suspend or revoke permits

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

This action does not impose additional requirements on the regulated community because the regulations for which New York is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register , we are publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

New York initially received Final authorization effective on May 29, 1986 (51 FR 17737) to implement its base hazardous waste management program. We granted authorization for changes to its program effective July 3, 1989 (54 FR 19184), May 7, 1990 (55 FR 7896), October 29, 1991 (56 FR 42944), May 22, 1992 (57 FR 9978), August 28, 1995 (60 FR 33753), and October 14, 1997 (62 FR 43111).

While EPA is not authorizing any New York State, civil or criminal statute in this program revision authorization, be advised that New York State has revised some of the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program in New York State. As of January 1, 1999, those updated New York State Statutes include the following: Environmental Conservation Laws (ECL) sections 27-0917(8), 70-0109(2)(a), 71-2707, 71-2709 through 71-2717, 71-2720, 71-2727 and Public Offices Law (POL) sections 87(2)(d), 87(2)(j), 89(2)(b)(iv) and 89(8). These provisions are related to criminal enforcement, public access to information and other aspects of the State program.

On July 30, 2001, New York submitted a signed Memorandum of Agreement, which was the final component for a complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. New York's revision application includes changes to the Federal Hazardous Waste program, as well as State-initiated changes. New York made these changes to provisions that we had previously authorized, as listed in Section F. All the State-initiated changes correct typographical errors and printing errors, clarify and make the State's regulations more internally consistent, or bring the State regulations closer to the Federal language.

We now make an immediate final decision, subject to receipt of written comments that oppose this action, that New York's hazardous waste program revision and State-initiated changes satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant New York Final authorization for the following program revisions (Note: We are only authorizing the revised regulations set forth below. The statutory citations are included for information purposes only.):

EPA grants New York Final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to RCRA regulations found at 40 CFR as of July 1, 1997. The New York provisions are from the Title 6, New York Codes, Rules and Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, as published on January 1, 1999, and amended through March 15, 1999, unless otherwise stated.

Part 370—Hazardous Waste Management System—General: Sections 370.1(b); 370.1(e)(1)(i)-(xiv); 370.1(e)(2), (e)(3), (e)(5), (e)(7) & (e)(8)(iii); 370.2(b)(2) (Supplement dated January 31, 2000), (b)(6), (b)(27), (b)(64) (Supplement dated November 15, 1999), (b)(70), (b)(91), (b)(109), (b)(111), (b)(132), (b)(135), (b)(164) (Supplement dated January 31, 2000), (b)(169), (b)(170), (b)(178), (b)(180) (Supplement dated January 31, 2000), and (b)(192); 370.3(d)(1)(i); and 370.5(a)(1)-(5).

Part 371—Identification and Listing of Hazardous Waste: Sections 371.1(a)(1), 371.1(e)(1)(vii), 371.1(e)(4)(iv)(‘a’) (introductory paragraph), 371.1(f)(5) (introductory paragraph), 371.1(f)(6)(ii), 371.1(f)(7)(i), 371.1(g)(1)(i), 371.1(g)(1)(iii) (introductory paragraph), 371.1(g)(1)(iii)(‘a’) (except the phrase “as defined in section 372.5 of this Title, and provide a copy of” in 371.1(g)(1)(iii)(‘a’)(‘1’)), 371.1(g)(2), 371.3(a)(3), 371.3(b)(1)(iii)&(iv) and 371.4(d)(3).

Part 372—Hazardous Waste Manifest System and Related Standards or Generators, Transporters and Facilities: Sections 372.1(e)(3)(iv); 372.1(e)(4); 372.1(g); 372.2(a)(8)(i); 372.2(a)(8)(iii)(‘a’), (‘f’), (8)(v)&(vi); 372.2(b)(7); 372.2(c)(2)(iii); 372.2(c)(3); 372.3(a)(6); 372.3(a)(7) (introductory paragraph) & (a)(7)(iii); 372.3(b)(1)(i)&(ii); 372.3(b)(2); 372.3(b)(5)(ii); 372.3(c)(4); 372.3(d)(1)(iii)(‘c’) and 372.7(d)(3).

Part 373, Subpart 373-1—Hazardous Waste Treatment, Storage and Disposal Facility Permitting Requirements: Sections 373-1.1(b), except (b)(4); 373-1.1(d) introductory paragraph; 373-1.1(d)(1), except (d)(1)(x) & (d)(1)(xviii); 373-1.2(b)&(d); 373-1.3(b) (introductory paragraph) & 373-1.3(b)(1) (introductory paragraph); 373-1.3(b)(3); 373-1.3(d)(4)(iv); 373-1.3(g)(2)(ii); 373-1.4(a)(1); 373-1.4(a)(2); 373-1.5(a)(1) (Supplement dated November 15, 1999); 373-1.5(b) (introductory paragraph); 373-1.5(c)(2); 373-1.5(c)(4); 373-1.5(d) (introductory paragraph); 373-1.5(e) (introductory paragraph); 373-1.5(e)(2); 373-1.5(f) (introductory paragraph); 373-1.5(f)(3)(ii); 373-1.5(f)(3)(iv)&(vi); 373-1.5(f)(4)(ii); 373-1.5(g) (introductory paragraph); 373-1.5(h) (introductory paragraph); 373-1.6(c)(4); 373-1.6(e) 373-1.7(c)(3)&(4); 373-1.7(d) (introductory paragraph), (d)(1)-(6) (8) and (10); 373-1.8(a)(1); 373-1.9(a)(1) (introductory paragraph); 373-1.9(a)(2) (except (a)(2)(iii), (iv) & (vi)) (Supplement dated January 31, 2000) and 373-1.9(a)(3).

Part 373, Subpart 373-2—Final Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities: Sections 373-2.1(b)&(c); 373-2.5(b)&(f); 373-2.6(h)(2) & (i)(7) (introductory paragraph); 373-2.7(d); 373-2.8(d)(1)(ii), (d)(1)(iii) & (d)(1)(ix); 373-2.8(d)(2)(i); 373-2.8(d)(2)(iii) (introductory paragraph); 373-2.8(d)(2)(iv); 373-2.8(d)(3)(iii) (introductory paragraph); 373-2.8(d)(4)(ii); 373-2.8(d)(5)(i) (introductory paragraph); 373-2.8(d)(5)(x); 373-2.8(f)(1)(iii) (introductory paragraph); 373-2.8(f)(1)(iii)(b) (6 NYCRR Supplement dated November 15, 1999); 373-2.8(f)(2); 373-2.8(f)(3)(ii) (introductory paragraph); 373-2.8(f)(5) (heading); 373-2.8(f)(5)(ii); 373-2.8(f)(5)(xi); 373-2.8(h)(1)(ii) & (h)(2)(ii); 373-2.8(j)(1); 373-2.8(j)(5); 373-2.8(j)(6)(i)&(ii); 373-2.9(d)(3)&(f)(3); 373-2.10(b)(1); 373-2.10(b)(3); 373-2.10(d)(1)(iii), (iv) & (vi); 373-2.10(d)(7) (introductory paragraph); 373-2.10(e)(4); 373-2.11(b)(5)(i), (d)(2) and (f); 373-2.12(e)(2); 373-2.14(e)(2); 373-2.14(h); 373-2.15(a)(4)-(5); 373-2.15(b)-(h); 373-2.23(a)(1)(i)&(ii); 373-2.23(d)(1)(iv)(a) and 373-2.23(d)(2) (introductory paragraph).

Part 373, Subpart 373-3—Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities: Sections 373-3.1(b);

Part 374, Subpart 374-1—Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities: Sections 374-1.1 and 374-1.7(a)(2)(iv).

Part 376—Land Disposal Restrictions: Sections 376.1(a)(3)(iii)&(iv); 376.1(d)(1)(ii)(‘a’); 376.4(e)(9)-(11) and 376.5(a)(1)(iii).

Part 621—Uniform Procedures: Sections 621.4(n); 621.5(b); 621.5(d) (introductory paragraph); 621.6(a)(4); 621.9(c) (introductory paragraph); 621.9(c)(1); 621.9(e) (introductory paragraph); 621.9(e)(1); 621.11(f) and 621.13(f).

New York hazardous waste management regulations are more stringent than the corresponding federal regulations in a number of different areas. The more stringent provisions are being recognized as a part of the Federally-authorized program and are Federally enforceable. The specific more stringent provisions are noted on the chart in Section G and in the State's authorization application, and include, but are not limited to, the following:

1. The State has additional reporting requirements including notification to the Department in addition to notification to US EPA ( e.g., 6 NYCRR §§ 373-1.3(i)(1)(i)&(ii), 373-3.29(d)(3)(iv)(‘b’)), and the provisions at 6 NYCRR §§ 373-2.2(d)(1), 373-3.2(c)(1), 372.5(c)(2), 372.5(f)(2) and 372.5(h) which address import/export notifications).

2. With regard to manifest requirements, New York has not adopted the Department Of Defense shipping controls ( i.e., 6 NYCRR §§ 373-2.5(a), 373-3.5(a) and 374-1.13(d)).

3. New York requires the storage of waste military munitions at a government-owned facility ( i.e., 6 NYCRR § 374-1.13(f)(1)(i)(‘h’)).

4. Incorporated material in New York must be as of a specified date; automatic incorporation of future changes is not allowed. ( i.e., 6 NYCRR § 374-1.13(f)(5)).

5. The State does not issue emergency permits (the State analog to 40 CFR 270.61(b)(5) is 6 NYCRR § 621.12). The State has provisions for emergency authorization of 30 days, with one 30-day extension available. When a State emergency authorization expires, the facility must apply for full RCRA-C permitting.

6. 6 NYCRR §§ 376.1(a)(3)(iv)(‘c’), 376.1(a)(3)(iii), 376.1(a)(3)(iii)(‘a’), 376.1(a)(9), 376.3(e)(1) and 376.3(g)(2) contain cross references to Title 7 & 8 of Article 17 in addition to references to the federal CWA, pertaining to permits and certificates for water pollution control and the State Pollutant Discharge Elimination System. Some of these State laws are more stringent than the federal CWA.

7. The New York pesticide requirements at 6 NYCRR § 374-3.1(c)(2)(i) require compliance with the triple rinse requirements at 6 NYCRR § 325.1(aa) rather than the Federal triple rinse requirement at 40 CFR 262.70.

8. According to 6 NYCRR § 374-3.1(c)(1)(ii), a waste pesticide collection program must be approved by the Department pursuant to 6 NYCRR § 373-4.

9. New York does not have a provision allowing a petition to modify or revoke any provision in 6 NYCRR Parts 370 through 374 and 376.

10. The State does not include the federal exemption for construction of PCB incineration facilities and has several other provisions that are more stringent regarding PCBs.

11. New York requires all modifications to a permit to be approved by the Department.

We consider the following State requirement to be beyond the scope of the Federal program:

• The State cross-references Part 364, which sets forth additional transporter requirements including permit and liability requirements ( i.e., 6 NYCRR §§ 372.2(b)(8), 373-1.7(h)(3), 374-3.3(i)(1)&(2), 374-3.4(a), 374-3.6(a)(1)).

Broader-in-scope requirements are not part of the authorized program and EPA can not enforce them. Although you must comply with these requirements in accordance with state law, they are not RCRA requirements.

Finally, like the export requirements at 40 CFR 262, subpart E, the 40 CFR 262, subpart H requirements will be administered by EPA and not the State because the exercise of foreign relations and international commerce powers is reserved to the Federal government under the Constitution. New York, however, requires that a copy of any notification submitted to EPA must also be submitted to the State (for example, see 6 NYCRR §§ 373-2.2(d)(1), 373-3.2(c)(1), 372.5(c)(2), 372.5(f)(2) and 372.5(h)).

New York will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization, and also to process permit modification requests for facilities with existing permits. EPA will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. Pursuant to § 3006(g)(1) of RCRA, EPA may continue to issue or deny permits to facilities within the State to implement those regulations promulgated under the authority of HSWA for which New York is not authorized.

The State of New York's Hazardous Waste Program is not authorized to operate in Indian country within the State. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in these lands.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. If this rule takes effect, or we finalize the companion proposal to authorize the State's changes to its hazardous waste program, we may, at a later date, amend 40 CFR part 272, subpart HH to codify New York's authorized program.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by state law. Accordingly, I certify that this action 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 (Pub. L. 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, as specified in Executive Order 13175. This action 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 authorizes state requirements as part of the State RCRA hazardous waste 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 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.

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 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 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 January 15, 2002.

The site to be deleted from the NPL is:

Aladdin Plating Site, Scott Township, Lackawanna County, Commonwealth of Pennsylvania.

A Notice of Intent to Delete for this site was published in the Federal Register on September 17, 2001 (66 FR 48018). The closing date for comments on the Notice of Intent to Delete was October 17, 2001. EPA received one comment from three residents that live adjacent to the site. This comment is addressed in the Responsiveness Summary which has been placed in the Deletion Docket. In response to this comment, EPA has agreed to increase the frequency of sampling of residential wells adjacent to the Site from annual to semi-annual.

EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such action. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

The site to be partially deleted from the NPL is the Tobyhanna Army Depot Superfund Site located near the town of Tobyhanna, in Coolbaugh Township, Monroe County, Pennsylvania. This partial deletion pertains to all portions of the Tobyhanna Army Depot except for the Excluded Areas, contaminated groundwater plumes at OU1 and OU5. This Partial Deletion is in accordance with 40 CFR 300.425(e) and the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, 60 FR 55466 (Nov. 1, 1995). A Notice of Intent for Partial Deletion was published on June 12, 2001 (66 FR 31582).

The closing date for comments on the Notice of Intent for Partial Deletion was July 13, 2001. The EPA received two comments, both of which concerned OU4, the Powder Smoke Ridge Unexploded Ordnance (UXO) Area. The commentors were concerned that OU4 was being proposed for deletion from the NPL when there had been no site remediation for the area and that UXO was to remain onsite. The US Army (the responsible party) completed a removal action at OU4 which consisted of installing a barbed wire fence and posting warning signs in the area.

This action was selected based on the difficulty in undertaking a clearance due to the age of the range and the rocky and heavily forested terrain. The remedial action chosen was institutional controls which includes maintenance of the physical controls, increased security patrols, proprietary controls, public education, and periodic review.

EPA provided detailed responses to the comments in a Responsiveness Summary, which is contained in the Deletion Docket. The Responsiveness Summary and entries in the Deletion Docket may be reviewed at the EPA Region III office at 1650 Arch Street, Philadelphia, PA, or at the information repository listed above.

The EPA identifies sites which appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts. Section 300.425(e)(3) of the NCP states that whenever there is a significant release from a site deleted from the NPL, the site may be restored to the NPL without application of the Hazard Ranking System.

(a) * * *

P=Sites with partial deletion(s).

This action is authorized by regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. On January 11, 2001 (66 FR 2338), the levels of allowable biological catch (ABC), the optimum yield (OY) and the commercial OY (the OY minus the tribal allocation) for U.S. harvests of whiting were announced in the Federal Register . For 2001 the whiting ABC and OY are 190,400 metric tons (mt) and the commercial OY is 162,900 mt.

Regulations at 50 CFR 660.323 (a)(4) divide the commercial OY into separate allocations for the non-tribal catcher/processor, mothership, and shore-based sectors of the whiting fishery. The catcher/processor sector is composed of vessels that harvest and process whiting. The mothership sector is composed of motherships, and catcher vessels that harvest whiting for delivery to motherships. Motherships are vessels that process, but do not harvest. The shoreside sector is composed of vessels that harvest whiting for delivery to shoreside processors. Each of these sectors receives a portion of the commercial OY. In 2001, the catcher/processors received 34 percent, motherships received 24 percent, and the shore-based sector received 42 percent. When applied to the commercial OY for 2001 this resulted in the following allocations: 55,386 mt for the catcher/processors, 39,096 mt for the motherships, and 68,418 mt for the shore-based sector.

On August 31, 2001, NMFS received notification from the treaty Indian participants indicating that 10,000 mt of the tribal whiting allocation was not expected to be harvested before the end of the fishing year. As a result, NMFS announced the reapportionment of that whiting, 3,400 mt of which was apportioned to the catcher/processor sector (66 FR 48370, September 20, 2001). Therefore, the allowable harvest for the catcher/processor sector in 2001 was 58,786 mt (55,386 mt + 3,400 mt).

Regulations at 50 CFR 660.323 (a)(3)(i) describe the primary season for catcher/processors as the period(s) when at-sea processing is allowed and the fishery is open for the catcher/processor sector. When each sector's allocation is reached, the primary season for that sector ends.

This action announces achievement of the allocation for the catcher/processor sector only. The best available information on November 9, 2001, indicated that the 58,786 mt catcher/processor allocation would be reached by 1800 hours l.t., November 13, 2001, at which time the primary season for the catcher/processor sector ends.

For the reasons stated here and in accordance with the regulations at 50 CFR 660.323 (a)(4)(iii)(A), NMFS herein announces that effective 1800 hours l.t., November 13, 2001, further taking and retaining, receiving or at-sea processing of whiting by a catcher/processor is prohibited. No additional unprocessed whiting may be brought on board after at-sea processing is prohibited, but a catcher/processor may continue to process whiting that was on board before at-sea processing was prohibited.

This action is authorized by the regulations implementing the FMP. The determination to take this action is based on the most recent data available. The aggregate data upon which the determination is based are available for public inspection at the Office of the Regional Administrator (see ADDRESSES ) during business hours. This action is taken under the authority of 50 CFR 660.323 (a)(4)(iii)(A) and is exempt from review under Executive Order 12866.