Karnal bunt is a fungal disease of wheat ( Triticum aestivum ), durum wheat ( Triticum durum ), and triticale ( Triticum aestivum X Secale cereale ), a hybrid of wheat and rye. Karnal bunt is caused by the fungus Tilletia indica (Mitra) Mundkur and is spread by spores, primarily through the planting of infected seed. Some countries in the international wheat market regulate Karnal bunt as a fungal disease requiring quarantine; therefore, without measures taken by the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture (USDA), to prevent its spread, the presence of Karnal bunt in the United States could have significant consequences with regard to the export of wheat to international markets.

The regulations regarding Karnal bunt are set forth in 7 CFR 301.89-1 through 301.89-16 (referred to below as the regulations).

On April 20, 2001, we published in the Federal Register (66 FR 20204-20208, Docket No. 00-088-1) a proposal to amend the regulations by adding new areas to the list of areas regulated because of Karnal bunt due to the detection during the 2000 harvest of bunted kernels in grain grown in those areas. We also proposed to remove fields from regulation because wheat is no longer grown in those fields or because the fields, which were previously classified as regulated areas because they were planted with seed that was suspected to be contaminated with Karnal bunt, have now produced grain that has tested negative for Karnal bunt.

We solicited comments concerning our proposal for 60 days ending June 19, 2001. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change. However, since the publication of the proposed rule, we have published two interim rules adding regulated areas in Texas. Specifically, in an interim rule effective on June 8, 2001, and published on June 14, 2001, (66 FR 32209-32210, Docket No. 01-058-1), we added Throckmorton and Young Counties, TX, to the list of regulated areas in § 301.89-3(f) and solicited comments on that action for 60 days ending on August 13, 2001. Subsequently, we published a second interim rule, effective on July 13, 2001, and published on July 19, 2001 (66 FR 37575-37576, Docket No. 01-063-1), that added Archer and Baylor Counties, TX, to that list, and solicited comments on that action for 60 days ending on September 17, 2001. The addition of those four counties to the list of regulated areas is reflected in § 301.89-3(f) in this rule.

This is a substantive rule that, in part, relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553(d)(1), the provisions of this rule that relieve restrictions may be made effective less than 30 days after publication in the Federal Register . This rule removes certain fields in Arizona and New Mexico from the list of areas regulated because of Karnal bunt either because wheat is no longer grown in those fields or because grain from those fields has tested negative for Karnal bunt. This action will eliminate restrictions on the movement of wheat and other regulated articles from these fields.

This rule also adds certain fields in Arizona to the list of regulated areas due to the detection of Karnal bunt. This action is necessary to help prevent the spread of the disease to noninfested areas in the United States. Consequently, we find good cause under 5 U.S.C. 553(d)(3) to make these restrictions effective less than 30 days after publication in the Federal Register .

Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

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

Upon the initial detection of Karnal bunt in Arizona in March of 1996, a Federal quarantine and emergency actions were imposed to prevent the interstate spread of the disease to other wheat producing areas in the United States. The quarantine has remained in effect, although it has since been modified in terms of its physical boundaries and restrictions on the production and movement of regulated articles.

This final rule will remove from regulation 9 fields in Arizona and 16 fields in New Mexico, reducing the size of the regulated area in both States. The fields that are being removed by this rule cover about 290 acres in Arizona and 530 acres in New Mexico.

We estimate that one wheat producer in Arizona and six wheat producers in New Mexico will be affected by that aspect of this rule. Under the regulations, wheat, durum wheat, and triticale may only be moved from regulated areas to nonregulated areas if it tests negative for bunted kernels. Additionally, commercial wheat seed may not be moved from regulated to nonregulated areas. Producers whose fields are removed from regulation will benefit because they will be able to move wheat and other regulated articles from these fields without restriction.

These benefits, however, are likely to be minimal. Considering that the testing of grain for Karnal bunt is already a free service for all producers in regulated areas, the elimination of testing requirements removes an inconvenience only, not a financial burden. Further, little or no commercial wheat seed is, or is expected to be, grown in the affected fields.

Similarly, this aspect of the rule will not serve to significantly reduce the need for equipment cleaning by producers or by custom combine harvesters who routinely move their machines into and out of regulated areas to harvest wheat for multiple producers. In the past, there has been little need for such cleaning because crops harvested in the affected fields have not produced bunted kernels, and equipment must be cleaned only if it has been used to harvest host crops that test positive for Karnal bunt.

One field in Arizona will be removed from regulation because it is currently being used for the construction of houses. In this case, no wheat producers or custom harvesters will be affected because the field is not being used for agricultural purposes.

The new areas being added to the regulated area in Arizona cover about 23,100 acres and contain approximately 600 fields. We estimate that about 15 wheat producers and 6 custom combine harvesters will be affected by this aspect of the rule. However, the effect on each is not likely to be significant. As previously stated, the required grain testing is performed free of charge for producers in regulated areas. Also, little or no commercial wheat seed is, or is expected to be, grown in the affected fields. Finally, mechanized harvesting equipment does not have to be cleaned and disinfected prior to movement from a regulated area unless it has been used to harvest crops that test positive for Karnal bunt.

Overall, the regulated agricultural acreage in Arizona will increase by about 22,810 acres to approximately 281,000 acres. In New Mexico, regulated agricultural acreage will decrease by approximately 530 acres to about 3,300 acres.

The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small businesses, organizations, and governmental jurisdictions. In this case, entities that will be most affected by this rule are wheat producers and custom combine harvesters. The size of these entities is unknown. It is reasonable to assume, however, that most are small in size according to the U.S. Small Business Administration's (SBA) criteria. This assumption is based on composite data for providers of the same and similar services. For example, in 1997, of the 6,135 wheat and other farms in Arizona, 89 percent had annual sales of less than $0.5 million, the SBA's threshold for a small wheat farm. Similarly, in 1997, there were 366 U.S. firms involved in mechanical harvesting and related activities, including combining of crops. Of these firms, 93 percent had less than $5.0 million in annual sales, which is the SBA's threshold for a small entity for businesses of that type.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform.

This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

On November 16, 2001, the FAA issued emergency AD 2001-23-51, which is applicable to certain Airbus Model A300 B4-600, B4-600R, and F4-600R (collectively called A300-600) series airplanes; and Model A310 series airplanes airplanes.

On November 12, 2001, an Airbus Model A300 B4-605R airplane was involved in an accident shortly after takeoff from John F. Kennedy International Airport, Jamaica, New York. The cause of the accident is under investigation by the National Transportation Safety Board (NTSB). Although the NTSB has not determined the cause of the accident, it has determined that the vertical stabilizer departed the airplane. In addition, the rudder was found separated from the vertical stabilizer.

The vertical stabilizer on Airbus Model A300-600 series airplanes with Airbus Modification 4886 is manufactured of advanced composite materials. The vertical stabilizer on Airbus Model A310 series airplanes with the same modification is manufactured of the same materials. Failure of the vertical stabilizer-to-fuselage attachment fittings, transverse (side) load fittings, or rudder-to-vertical stabilizer attachment fittings, if not corrected, could result in loss of the vertical stabilizer and/or rudder and consequent loss of control of the airplane.

The FAA considers that, before structural failure, it may be possible to detect indications of possible failure modes that could result in separation of the vertical stabilizer from the airplane. These indications include edge delaminations, cracked paint, surface distortions, other surface damage, and failure of the transverse (side) load fittings. Similarly, indications of failure of the rudder assembly, which could lead to failure of the vertical stabilizer, may also be detectable with such an inspection. Although neither the FAA nor the NTSB have reached conclusions with respect to these possible failures on the accident airplane, we consider it prudent to require an inspection of these structures to identify any such indication that may exist.

These airplane models are manufactured in France and are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. The FAA has coordinated this action with the Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, and the DGAC has taken similar action.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design registered in the United States, the FAA issued emergency AD 2001-23-51 to prevent failure of the vertical stabilizer-to-fuselage attachment fittings or transverse (side) load fittings, or rudder-to-vertical stabilizer attachment fittings, which could result in loss of the vertical stabilizer and/or rudder and consequent loss of control of the airplane. The AD requires a one-time detailed visual inspection to detect repairs and alterations to, and damage of the vertical stabilizer attachment fittings, including the main attachment lugs and the transverse (side) load fittings; and the rudder hinge fittings, hinge arms, and support fittings for all rudder hinges, and rudder actuator support fittings; and repair, if necessary. Damage of the metallic areas includes pulled or loose fasteners, wear areas, distorted flanges, cracks, and corrosion. Damage of the composite areas includes delamination; distorted surfaces that may indicate delamination; cracks in the paint surface; evidence of moisture damage; and cracked, splitting, or frayed fibers. This AD also requires that operators report results of inspection findings to the FAA.

This is considered to be interim action. The inspection report that is required by this AD will enable the FAA, DGAC, and manufacturer to obtain better insight into the potential unsafe condition, and eventually to develop final action to address it, if necessary. If final action is identified, the FAA may consider further rulemaking.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on November 16, 2001, to all known U.S. owners and operators of certain Airbus Model A300 B4-600, B4-600R, and F4-600R (collectively called A300-600) series airplanes; and Model A310 series airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective as to all persons.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-349-AD.” The postcard will be date stamped and returned to the commenter.

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

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

The FAA has received reports of electrical connectors of the engine fire extinguishing agent containers being cross-wired on certain McDonnell Douglas DC-8 series airplanes. The fire extinguishing system on these airplanes consists of independent left- and right-wing fixed fire extinguisher installations. Each wing installation includes two containers with two fire extinguishing agent deployment lines per container. Either container of a wing installation may be discharged into either engine nacelle of the same wing. In one incident, six of eight electrical connectors of the explosive cartridges were found installed on the incorrect cartridge/discharge valve. These reported incidents were caused by unclear maintenance instructions and an inadequate wire harness design that does not prevent cross-connecting the electrical connectors. Cross-wired electrical connectors of the fire extinguishing system, if not corrected, could release fire extinguishing agent into the incorrect engine nacelle in the event of an engine fire.

The FAA has reviewed and approved Boeing Alert Service Bulletin DC8-26A046, dated November 7, 2001. The service bulletin describes procedures for repetitive inspections of the electrical connectors of the explosive cartridge wiring of the fire extinguisher containers to verify if the identification number labels are installed and legible; and installation of a label or replacement of the label with a new label, if necessary. The service bulletin also describes procedures for repetitive electrical tests of the explosive cartridge wiring of the fire extinguisher container to verify proper installation and function, and for troubleshooting and repairing the wiring of the Firex Discharge system, if necessary.

Since an unsafe condition has been identified that is likely to exist or develop on other McDonnell Douglas Model DC-8-33, -43, -51, -52, -53, and -55 series airplanes; Model DC-8F-54, and -55 series airplanes; and Model DC-8-61, -61F, -62, -62F, -63, -63F, -71, -71F, -72, -72F, -73, and -73F series airplanes of the same type design, this AD is being issued to detect and correct cross-wired electrical connectors of the fire extinguishing system, which could release fire extinguishing agent into the incorrect engine nacelle in the event of an engine fire. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that, although the service bulletin recommends accomplishing the inspection within two days (from the issue date of the service bulletin), the FAA has determined that a compliance time of 30 days will not adversely affect safety, and will allow the inspections and tests to be performed at a base during regularly scheduled maintenance where special equipment and trained maintenance personnel will be available if necessary. In addition, there has only been one reported engine fire in the entire DC-8 worldwide fleet in the last five years. Therefore, we find that a compliance time of 30 days is warranted.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-345-AD.” The postcard will be date stamped and returned to the commenter.

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

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

The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on certain Fokker Model F.28 Mark 0100 series airplanes. The CAA-NL advises that, upon touchdown, a main landing gear (MLG) main fitting failed, causing the lower part of the main fitting to break off, including the MLG sliding member, wheels, and brakes. Subsequent inspection revealed a crack, located 5 centimeters outboard from the inboard face of the upstop damper abutment, which measured 12 millimeters in length and 2.5 millimeters in depth. In that same area, an operator found 3 more MLG main fittings with an indication of an eddy current defect. In several other cases, the crack was determined to be due to a forging defect. This condition, if not corrected, could lead to cracking and result in significant structural damage to the airplane and possible injury to the occupants.

Messier-Dowty Limited has issued Messier-Dowty Service Bulletin No. F100-32-101, including Appendices A and B, dated October 25, 2001, which describes procedures for two inspections of the MLG fittings for cracking and rework of the MLG main fittings within certain areas.

Service Bulletin No. F100-32-101 refers to Messier-Dowty Service Bulletin No. F100-32-100, Revision 1, dated June 19, 2001, and Fokker Service Bulletin SBF100-32-131, dated October 25, 2001, as additional sources of service information for the inspections and rework actions.

The CAA-NL classified Messier-Dowty Service Bulletin No. F100-32-100 as mandatory and issued Dutch airworthiness directive BLA 2001-080, dated June 29, 2001, for a one-time eddy current inspection and rework actions to assure the continued airworthiness of these airplanes in the Netherlands.

Although the previously referenced Dutch airworthiness directive specifies a one-time eddy current inspection on MLG main fittings and rework actions per Messier-Dowty Service Bulletin No. F100-32-100, the FAA has determined that the initial and repetitive inspections required by paragraph (a) of this AD and the rework actions, if necessary, required by paragraph (b) of this AD must be made per Messier-Dowty Service Bulletin No. F100-32-101. This determination was made because the manufacturer informed the FAA that findings made after the issuance of Service Bulletin F100-32-100 indicate the need for additional eddy current inspections of the MLG main fittings. Findings also reveal that detection of closed forging folds might not be possible and that the forging folds would open when the main fittings are subjected to certain landing load levels. Because some detectable indications could be missed during the initial inspection, repetitive inspections are required to identify all detectable forging fold defects. To address these findings, Messier-Dowty has issued Service Bulletin No. F100-32-101 to specify additional inspections to safeguard the structural integrity of the MLG. As a result, the inspections required by paragraph (a) of this AD must be done per Service Bulletin No. F100-32-101 instead of Service Bulletin No. F100-032-100.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to detect forging defects of the MLG, and rework of the MLG main fittings if necessary. This AD requires initial and repetitive eddy current inspections of certain MLG main fittings to detect forging defects, and rework of the main fittings if necessary. This AD also would require that operators report all findings of the eddy current inspections to Fokker Services B.V. This AD requires accomplishment of the actions per Messier-Dowty Service Bulletin No. F100-32-101, as described previously, except as discussed below.

Operators should note that, as described earlier, Dutch airworthiness directive BLA 2001-080 specifies only a one-time eddy current inspection of the MLG main fittings and rework actions per Messier-Dowty Service Bulletin No. F100-32-100, or a later revision approved by the CAA-NL. However, this AD requires an initial eddy current inspection and repetitive inspections, and rework of the MLG main fittings if necessary, per Messier-Dowty Service Bulletin No. F100-32-101. The CAA-NL has notified the FAA that it will issue a new Dutch airworthiness directive to mandate the inspections, and rework if necessary, specified by Service Bulletin No. F100-32-101. However, operators should note that this AD differs from Dutch airworthiness directive BLA 2001-080 in that it would require continuing the inspections until a final terminating action is identified.

Operators also should note that a later revision of a service bulletin may not be referenced in an AD because the use of the phrase “or a later revision” would violate Office of the Federal Register regulations regarding the approval of materials that are incorporated by reference.

Operators should note the following differences between Service Bulletin No. F100-32-101 and this AD:

• Although the referenced service bulletin specifies only two eddy current inspections, this AD requires an initial inspection and repetitive inspections until a final terminating action is identified. The FAA point outs that the exclusion of continued inspections after only two inspections relies on a damage tolerance approach. This approach leads the manufacturer to the conclusion that the crack growth is of a magnitude that would not lead to failure prior to overhaul. However, we do not agree with such a conclusion as there are a number of unknown variables associated with detecting and anticipating the effects of forging fold defects. For this reason, we have determined that requiring only two inspections would not adequately address the identified unsafe condition and that continued inspections until accomplishment of a terminating action are necessary to ensure the continued airworthiness of the fleet.

• Although the referenced service bulletin specifies that the parts manufacturer may be contacted for disposition of certain discrepancies, this AD would require the repair of those conditions to be accomplished in accordance with a method approved by either the FAA, or CAA-NL (or its delegated agent). In light of the type of repair that would be required to address the identified unsafe condition, and in consonance with existing bilateral airworthiness agreements, the FAA has determined that, for this AD, a repair approved by either the FAA or CAA-NL (or its delegated agent) would be acceptable for compliance with this AD.

• The referenced service bulletin specifies that, after accomplishing the actions specified in that service bulletin, rework of the MLG main fittings is to be accomplished per a new service bulletin, Messier-Dowty Service Bulletin F100-32-102. However, because the new service bulletin has not been issued yet, this AD cannot specify that service bulletin. The new service bulletin is expected to include procedures that would terminate the need for the inspections required by this AD.

This is considered to be interim action. The manufacturer has advised that it currently is developing rework procedures that will positively address the unsafe condition addressed by this AD. Once this procedure is developed, approved, and available, the FAA may consider additional rulemaking.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-327-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at (202) 208-2222 (E

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2000 costs. The adjusted fees announced in this notice are effective January 4, 2002. The Commission has determined with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

Merial Ltd., 2100 Ronson Rd., Iselin, NJ 08830-3077, has informed FDA of a change of sponsor's address to 3239 Satellite Blvd., Bldg. 500, Duluth, GA 30096-4640. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c)(1) and (c)(2) to reflect the change.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

1. The authority citation for 21 CFR part 510 continues to read as follows:

2. Section 510.600 is amended in the table in paragraph (c)(1) by revising the entry for “Merial Ltd.” and in the table in paragraph (c)(2) by revising the entry for “050604” to read as follows:

Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137, filed ANADA 200-318 for VIRBAMEC (ivermectin) Pour-On. The ANADA provides for topical use of 0.5 percent ivermectin solution on cattle for the treatment and control of various species of gastrointestinal nematodes, lungworms, grubs, horn flies, lice, and mites. Virbac's VIRBAMEC Pour-On is approved as a generic copy of Merial Ltd.'s IVOMEC Pour-On for Cattle, approved under NADA 140-841. The ANADA 200-318 is approved as of September 21, 2001, and the regulations in 21 CFR 524.1193 are amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In addition, Virbac AH, Inc., has not been previously listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c) is being amended to add entries for the firm.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Pfizer, Inc., 235 East 42d St., New York, NY 10017-5755, filed a supplement to approved NADA 141-053 that provides for veterinary prescription use of RIMADYL (carprofen) Caplets for the relief of pain and inflammation associated with osteoarthritis in dogs. The supplemental NADA provides for a once daily, 2-mg/lb dosage for the oral caplet dosage form. The supplemental application is approved as of September 27, 2001, and the regulations are amended in 21 CFR 520.309 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval for non-food-producing animals qualifies for 3 years of marketing exclusivity beginning September 27, 2001, because the application contains substantial evidence of effectiveness of the drug involved or any studies of animal safety required for approval of the application and conducted or sponsored by the applicant.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

1. The authority citation for 21 CFR part 520 continues to read as follows:

2. Section 520.309 is amended in paragraph (a) by adding “(mg)” after “milligrams”; and by revising paragraph (d) to read as follows:

First Priority, Inc., 1585 Todd Farm Dr., Elgin, IL 60123, filed ANADA 200-321 for PRIMECTIN TM (ivermectin) Equine Oral Liquid. The application provides for oral use of a 1.0 percent ivermectin solution in horses for the treatment and control of various species of gastrointestinal nematodes, lungworms, stomach bots, and cutaneous larvae and microfilariae. First Priority's PRIMECTIN TM Equine Oral Liquid is approved as a generic copy of Merial Ltd.'s EQVALAN® (ivermectin) Oral Liquid for Horses, approved under NADA 140-439. ANADA 200-321 is approved as of September 7, 2001, and 21 CFR 520.1195 is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to congressional review requirements in 5 U.S.C. 801-808.

This section contains additional information about our final rulemaking, organized as follows:

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that meet certain federal criteria. Pinal's operating permits program was submitted in response to this directive. Because the District program substantially, but not fully, met the requirements of part 70, EPA granted interim approval to the program in a rulemaking published on October 30, 1996. See 61 FR 55910. The interim approval notice described the conditions that had to be met in order for the District program to receive full approval.

After Pinal revised its program to address the conditions of the interim approval, EPA promulgated a proposal to approve the District's title V operating permits program on September 20, 2001, contingent upon Pinal submitting the rules that were adopted on September 5, 2001, as a revision to its part 70 program. See 66 FR 48402.

EPA is granting full approval to the operating permits program submitted by the Pinal County Air Quality Control District based on the revisions adopted on September 5, 2001, and submitted to EPA on September 18, 2001, which satisfactorily address the program deficiencies identified in EPA's October 30, 1996 interim approval (61 FR 55910). In addition, EPA is approving, as a title V operating permits program revision, additional changes to Pinal's rules. The deficiency corrections and the additional program revisions are described in detail in the September 20, 2001 proposal and its accompanying technical support document. See 66 FR 48402.

The rules for which we are granting final approval are listed below.

In its program submission, Pinal County did not assert jurisdiction over Indian country. To date, no tribal government in Pinal County has applied to EPA for approval to administer a title V program in Indian country within the County. EPA regulations at 40 CFR part 49 govern how eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA's part 71 regulations govern the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA , (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the District's program effective on November 30, 2001. In relevant part, the APA provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—* * * (3) as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may be supported by an agency determination that a delay in the effective date is impracticable, unnecessary, or contrary to the public interest. EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. EPA's interim approval of Pinal County's program expires on December 1, 2001. In the absence of this full approval of Pinal County's amended program taking effect on November 30, the federal program under 40 CFR part 71 would automatically take effect in Pinal County and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public and Pinal County to avoid any gap in coverage of the state program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because Pinal County has been administering the title V permit program for 5 years under an interim approval. Through this action, EPA is approving a few revisions to the existing and currently operational program. The change from the interim approved program which substantially met the part 70 requirements, to the fully approved program is relatively minor, in particular if compared to the changes between a state-established and administered program and the federal program.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

This section provides additional information by addressing the following questions:

Title V of the Clean Air Act (CAA) and its implementing regulations at 40 CFR part 70 (part 70) direct all states to develop and implement operating permit programs that meet certain criteria. Operating permit programs are intended to consolidate into single federally enforceable documents all CAA requirements that apply to individual sources. This consolidation of all of the applicable requirements for a source enables the source, the public, and permitting authorities to more easily determine what CAA requirements apply and whether the source is complying with them. Sources required to obtain operating permits include “major” sources of air pollution and certain other sources specified in CAA section 501 and in EPA's regulations at 40 CFR 70.3.

The EPA reviews state programs pursuant to title V of the CAA and part 70, which outline the criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements of part 70, EPA may grant the program interim approval which would be effective for two years. If a state does not have in place a fully approved program by the time the interim approval expires, the federal operating permit program under 40 CFR part 71 (part 71) will be implemented. Due to unexpected circumstances that affected states' timeliness in developing fully approvable programs, EPA extended the effective date of all interim approvals until December 1, 2001. For any state that has not received full approval from EPA by December 1, 2001, its interim approval will then expire and be immediately replaced by the federal part 71 program. All sources subject to the federal program that do not have final part 70 permits already issued to them by the state are then required to submit a part 71 permit application and the appropriate fees within one year to their respective EPA Regional offices under part 71.

New Jersey's first version of its operating permit program substantially, but not fully, met the requirements of part 70; therefore, EPA granted the program interim approval on May 16, 1996, which became effective on June 17, 1996 (61 FR 24715). EPA identified four issues that needed correction before New Jersey would be eligible for full approval. New Jersey submitted a corrected program to EPA on May 31, 2001, which addressed each of the four deficiencies.

On October 25, 2001, EPA proposed full approval of New Jersey's title V operating permit program and provided the public a period of 30 days to submit comments on EPA's proposed action (66 FR 53969). During the 30-day comment period, EPA received no comments on the proposed full approval. However, EPA finds it appropriate to clarify a statement made in the “Nonmajor Sources Section” of the proposal. Where it was stated that “[a]n exemption not only relieves the subject sources from the permitting requirement; it also relieves them from the substantive requirements,” EPA did not mean to imply that an exemption from the permitting requirement would also exempt the subject source for substantive requirements in the standard. The subject nonmajor source must check the individual standards to determine if requirements other than the need to obtain a part 70 permit apply to it. This document finalizes EPA's action on the proposal.

The details on the program changes can be found in EPA's proposed action which was published in the October 25, 2001 issue of the Federal Register (see 66 FR 53969). In summary, EPA approves the following changes to the New Jersey Operating Permit Rule that became effective on August 2, 1999:

(1) N.J.A.C. 7:27-22.20(b)(7);

(2) N.J.A.C. 7:27-22.29(a) and 22.29(e); and

(3) N.J.A.C. 7:27-22.1.

The State of New Jersey has fulfilled the conditions of the interim approval granted on May 16, 1996. EPA is therefore taking final action to fully approve New Jersey's operating permit program. EPA is also taking final action to approve other program changes made by the State since the interim approval was granted as identified in the October 25, 2001 issue of the Federal Register notice (see 66 FR 53969). This final full approval has no expiration date. However, the State may revise its operating permit program as appropriate in the future by following the procedures stipulated in 40 CFR 70.4(i). EPA may also exercise its oversight authorities under section 502(i) of the Act to require changes to the State's program consistent with the procedure stipulated in 40 CFR 70.10.

In its program submittal, New Jersey did not assert jurisdiction over Indian country. To date, no tribal government in New Jersey has applied to EPA for approval to administer a title V program in Indian country within the State. On February 12, 1998, EPA promulgated regulations (40 CFR part 49) under which eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA has promulgated regulations (40 CFR part 71) governing the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA , (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the State's program effective on November 30, 2001. In relevant part, section 553(d) provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—* * * (3) as otherwise provided by the agency for good cause found and published with the rule.” Good cause may be supported by an agency determination that a delay in the effective date is “impracticable, unnecessary, or contrary to the public interest.” APA section 553(b)(3)(B). EPA believes that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. EPA's interim approval of New Jersey's program expires on December 1, 2001. In the absence of this full approval taking effect on November 30, 2001, the federal part 71 program would automatically take effect in New Jersey and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public and the State to avoid any gap in coverage of the State program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because New Jersey has been administering the title V permit program for five years under an interim approval. Through this action, EPA is approving a few revisions to the existing and currently operational program. The change from the interim approved program which substantially but did not fully meet the part 70 requirements, to the fully approved program is relatively minor, in particular if compared to the changes between a state-approved program and the federal program. Finally, sources are already complying with many of the newly approved requirements as a matter of state law. Thus, there is little or no additional burden with complying with these requirements under the federally approved State program.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program , to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

This section provides additional information by addressing the following questions:

The CAA Amendments of 1990 required all States to develop Operating Permit Programs that met certain Federal criteria. In implementing the Operating Permit Programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the Operating Permit Program is to improve enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility into a single document, the source, the public, and the regulators can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

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

Where an Operating Permit Program substantially, but not fully met the criteria outlined in the implementing regulations codified at 40 CFR part 70, EPA granted interim approval contingent on the State revising its program to correct the deficiencies. Because Oklahoma's Operating Permit Program substantially, but not fully met the requirements of part 70, EPA granted interim approval to the program in a rulemaking published on February 5, 1996 (61 FR 4220). Interim approval of Oklahoma's program expires on December 1, 2001.

The Oklahoma Department of Environmental Quality (ODEQ) has fulfilled the conditions of interim approval granted on February 5, 1996. On October 16, 2001, EPA published a document in the Federal Register (66 FR 52562) proposing full approval of Oklahoma's title V Operating Permits Program, and proposing approval of certain other program revisions. The EPA received comments from one person during the comment period that ran from October 16, 2001, until November 15, 2001. Two of the comments agreed with EPA that the deficiencies for the first, second, and fourth conditions (transition schedule for permit issuance, major source definition, and permit language content) for full approval have been corrected. The remainder of the comments disagreed with EPA's position, and are set forth below.

The first adverse comment was a general comment that Oklahoma should amend its operating permits regulations so that the language tracks the language in 40 CFR part 70. The commenter contends that Oklahoma's regulations must track the language of 40 CFR part 70 to retain the effect and intent of the Clean Air Act. Otherwise, according to the commenter, EPA is put in the position of trying to renegotiate the Clean Air Act.

EPA does not concur with the comment. Part 70 provides for the establishment of a comprehensive State air quality permitting program consistent with the requirements of title V of the Clean Air Act. 40 CFR 70.1(a). The state's program does not have to exactly track the language in part 70, but it must be consistent with it. 40 CFR 70.1(c). This allows for flexibility by the State to adopt the regulations to fit its needs while maintaining national consistency. The EPA has determined that Oklahoma's program is consistent with part 70 with the exception of the minor issues outlined in the Notice of Deficiency located elsewhere in this Federal Register .

The second adverse comment questioned why the insignificant activities definition in Oklahoma's rule and the approved list of insignificant activities in Appendix I of Subchapter 8 remain as a part of the Oklahoma Administrative Code if the EPA is not approving the list. The commenter questioned whether EPA has the authority to approve the list and whether the regulation tracks the language of 40 CFR part 70.

The authority to approve an insignificant activities list is found at 40 CFR 70.5(c), which states that “the Administrator may approve as a part of the State program a list of insignificant activities and emissions levels which need not be included in permit applications.” As EPA stated in the Federal Register when it granted final interim approval to Oklahoma, “even though insignificant activities are not a required element of a part 70 program, a State that opts to establish such activities must nevertheless meet certain requirements, including prior approval by EPA.” 61 FR 4220, 4221. As EPA stated when it proposed granting full approval, the emission levels in the definition are consistent with the levels in other approved State Operating Permit Programs. Even though EPA did not approve the list of insignificant activities, the list remains a part of Oklahoma's regulations as a matter of state law. However, it is not part of Oklahoma's approved title V program. Therefore, EPA does not concur with this comment.

The third adverse comment involved what the commenter characterized as the “judicial review” process, but was not related to the deficiency as outlined by EPA when we granted Oklahoma interim approval. The comment dealt with whether certain construction permits are classified as a Tier II or Tier III permit and how this affects “judicial review.” If a permit is characterized as Tier II, the commenter claims that “judicial review” is avoided because of the lack of an administrative hearing. If it is classified as a Tier III permit and a hearing is held, the commenter contends that certain regulations governing administrative hearings such as employment of the administrative law judge, declaratory ruling procedures, restricting attendance at administrative hearings in appropriate cases, and burden of proof restrict judicial review.

EPA does not agree with this comment. Judicial review in this instance refers to the ability of an individual to appeal a decision from an administrative agency to state court, not how (or whether) the state conducts an administrative hearing. Thus, the comments are not related to judicial review but instead are related to the Tier II and Tier III permit process as outlined in Oklahoma Administrative Code (OAC) Title 252, Chapter 4. The EPA is not approving this entire Chapter as a part of this action. As previously stated, EPA is not approving any provision of Subchapter 8 which relates to construction permits, or any other provision contained in the submittal which does not pertain to Title V. 66 FR at 52564. The EPA found only one issue with judicial review as it relates to the state's Operating Permit program (no judicial review for persons who made oral comments), and that deficiency has been corrected. The EPA does not believe that these comments are relevant to any interim approval issue or to the action that EPA is taking today.

The fourth adverse comment states that by not defining the term “Enhanced New Source Review (NSR) procedures”, Oklahoma has effectively avoided the NSR procedures in the Clean Air Act. The commenter believes that permits which should have been subject to 40 CFR part 70 will be shielded from the NSR procedures. The commenter feels that the state should use the exact language of 40 CFR part 70 in regards to “Enhanced NSR procedures” and that Oklahoma is allowed to approve permits without using NSR procedures.

The commenter appears to believe that because Oklahoma used the undefined term “enhanced NSR procedures” in the Title V context, certain sources that would have otherwise been subject to NSR procedures will no longer be subject to those procedures. However, this is not the case. The title V program and the NSR program have different procedures and requirements. As noted in the October 16, 2001 proposed full approval, Oklahoma has deleted the term “enhanced NSR procedures” from its regulations and has instead made the commitments detailed in the proposal and discussed in paragraph 6. Thus, we will describe the issue in more general terms. Under certain conditions, a state may allow the incorporation into a part 70 permit, the requirements from preconstruction review permits authorized under an EPA-approved program through the use of the administrative permit amendment process. As provided in 70.7(d)(1)(v), the EPA approved NSR permitting program must meet procedural requirements substantially equivalent to the requirements of part 70 that would be applicable to the change if the change were subject to review as a permit modification. Thus, the procedures required by 40 CFR 70.7(d)(1)(v) for use of the administrative amendment process are in addition to the Clean Air Act's New Source Review requirements and do not abrogate those requirements. These procedures are not related to the installation of pollution controls as stated by the commenter. The EPA does not concur with these comments.

In the Federal Register , EPA stated that it had given Oklahoma four options to address outstanding issues from the sixth and seventh interim approval deficiencies. These options included Oklahoma either including provisions in the title V permit that meet the requirements of 40 CFR 70.7 and 70.8 (the option ultimately chosen by Oklahoma) or amending the regulation to track the language in 40 CFR 70.7(d)(1)(v). The commenter contends that the regulation should be amended so that the language tracks the language in part 70. Otherwise, according to the commenter, it opens the door to renegotiate the language of the Clean Air Act.

As set forth in response to the first comment, a State does not have to use the exact language of part 70 when promulgating its operating permits program. Therefore, we do not agree with this comment.

As stated in the Federal Register , EPA and Oklahoma agreed on nine conditions it would include in its permits to implement its desire to use the administrative amendment process to incorporate requirements from preconstruction permits into a title V permit. 66 FR at 52564. The commenter had several objections to these provisions. Three of these comments related to the 30 day public notice and comment period, contending that 30 days is insufficient to analyze the permit and that the public will not have another 30 day comment period when the construction permit is incorporated in the title V permit. However, this permit condition is consistent with the federal requirements outlined in 40 CFR 70.7(h)(4) which requires the permitting authority to provide at least 30 days for public comment.

The commenter also objected to the requirement that the public notice state that EPA review, EPA objection, and petitions to EPA will not be available when the preconstruction requirements are incorporated into a title V permit. However, EPA review, EPA objection, and the EPA petition process is available during the construction permit process. The purpose of requiring this language in the public notice is to put the public on notice that the time to object to the permit is during the construction permit process, not when it is incorporated into the title V permit. This procedure is authorized by 40 CFR 70.7(d)(1)(v), and thus we do not agree with this comment.

Two comments related to the criteria for determining what States are affected ( i.e. , affected states). The federal definition of “affected states” is found at 40 CFR 70.2. Oklahoma's definition (OAC 252:100-8-2) is consistent with the federal definition.

The commenter states that EPA review, objections, and petitions should be posted on the ODEQ and EPA web sites. There is no legal requirement to post EPA review, objections, or petitions on Oklahoma's or EPA's website. However, EPA does post title V petitions and its response to the petition on a website. These documents can be found at http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/ petitiondb.htm.

Finally, the commenter asserts that the language of 40 CFR 70.7(f) and (g) should be a part of the Oklahoma Administrative Code (OAC) and not be modified by OAC 252:100-8-7.3(a), (b), and (c). The language of 40 CFR 70.7(f) and (g) is not modified by OAC 252:100-8-7.3(a), (b), and (c). The citations to the Oklahoma Administrative Code are to the procedures for reopening permits that EPA has approved as meeting the part 70 requirements. They do not modify 40 CFR 70.7(f) and (g). If EPA reopens a permit for cause, it will use the procedures in 40 CFR 70.7(f) and (g).

There were two comments relating to the Governor's approval of Oklahoma's proposed revisions to OAC 252:100-8-8, which corrected the deficiencies relating to permit review by EPA and affected states. EPA noted that the Governor must approve this regulation before it becomes effective. The commenter was concerned that the Governor would not approve these revisions. However, the Governor has approved these revisions, and Oklahoma submitted these revisions to EPA by letter dated October 19, 2001.

The commenter also asserted that the issues identified as additional program deficiencies were not minor and that they should be corrected prior to full approval. The EPA stated in the October 16, 2001 notice that it would publish a notice of deficiency concerning revisions Oklahoma made to its Operating Permits Program that did not meet the requirements of part 70. These deficiencies relate to public participation, Tier I air quality applications, definitions, permit content, administrative permit amendments, minor permit modification procedures, and permit review by EPA and affected States. 1 These deficiencies were identified in a June 12, 2001 letter to Oklahoma. However, for the reasons discussed below, we disagree that these deficiencies prohibit us from granting Oklahoma full program approval at this time.

In 1990, Congress amended the CAA, 42 U.S.C. 7401 et seq. , by adding title V, 42 U.S.C. 7661 to 7661f, which requires certain air pollutant emitting facilities, including “major source[s]” and “affected source[s],” to obtain and comply with operating permits. See 42 U.S.C. 7661a(a). Title V is intended to be administered by local, state or interstate air pollution control agencies, through permitting programs that have been approved by EPA. See 42 U.S.C. 7661a(a). EPA is charged with overseeing the State's efforts to implement an approved program, including reviewing proposed permits and vetoing improper permits. See 42 U.S.C. 7661a(i) and 7661d(b). Accordingly, title V of the CAA provides a framework for the development, submission and approval of state operating permit programs. Following the development and submission of a state program, the CAA provides two different approval options that EPA may utilize in acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to section 502(d), EPA “may approve a program to the extent that the program meets the requirements of the Act * * *”. EPA may act on such program submittals by approving or disapproving, in whole or in part, the state program. An alternative option for acting on state programs is provided by the interim approval provision of section 502(g). This section states: “[i]f a program * * * substantially meets the requirements of this title, but is not fully approvable, the Administrator may by rule grant the program interim approval.” This provision provides EPA with the authority to act on State programs that substantially, but do not fully, meet the requirements of title V and part 70. Only those program submittals that meet the requirements of eleven key program areas are eligible to receive interim approval. See 40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to “specify the changes that must be made before the program can receive full approval.” 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit directive encompasses another, implicit one: once a state corrects the specified deficiencies, then it will be eligible for full program approval. EPA believes this is so even if deficiencies have been identified sometime after final interim approval, either because the deficiencies arose after EPA granted interim approval or, if the deficiencies existed at that time, EPA failed to identify them as such in proposing to grant interim approval.

Thus, an apparent tension exists between these two statutory provisions. Standing alone, section 502(d) appears to prevent EPA from granting a state operating permit program full approval until the state has corrected all deficiencies in its program no matter how insignificant, and without consideration as to when such deficiency was identified. Alternatively, section 502(g) appears to require that EPA grant a state program full approval if the state has corrected those issues that the EPA identified in the final interim approval. The central question, therefore, is whether by virtue of correcting the deficiencies identified in the final interim approval Oklahoma is eligible at this time for full approval or whether Oklahoma must also correct any new or recently identified deficiencies as a prerequisite to receiving full program approval.

According to settled principles of statutory construction, statutory provisions should be interpreted so that they are consistent with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent statutory provisions, it must give maximum possible effect to all of the provisions, while remaining within the bounds of its statutory authority. Id. at 870-71. Whenever possible, the agency's interpretation should not render any of the provisions null or void Id. Courts have recognized that agencies are often delegated the responsibility to interpret ambiguous statutory terms in such a fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always possible, however, and furthermore should not be sought if it requires distorting the language in a fashion never imagined by Congress. Citizens to Save Spencer County, 600 F.2d at 870.

In this situation, in order to give effect to the principles embodied in title V that major stationary sources of air pollution be required to have an operating permit that conforms to certain statutory and regulatory requirements, and that operating permit programs be administered and enforced by state permitting authorities, the appropriate and more cohesive reading of the statute recognizes EPA's authority to grant Oklahoma full approval in this situation while working simultaneously with the state, in its oversight capacity, on any additional problems that were recently identified. To conclude otherwise would disrupt the current administration of the state program and cause further delay in Oklahoma's ability to issue operating permits to major stationary sources. A smooth transition from interim approval to full approval is in the best interest of the public and the regulated community and best reconciles the statutory directives of title V.

Furthermore, requiring the State to fix all of the deficiencies that were identified in the June 12, 2001 letter to receive full approval runs counter to the established regulatory process that is already in place to deal with newly identified program deficiencies. Section 502(i)(4) of the CAA and 40 CFR 70.4(i) and 70.10 provides EPA with the authority to issue notices of deficiency (“NOD”) whenever EPA makes a determination that a permitting authority is not adequately administering or enforcing a part 70 program, or that the State's permit program is inadequate in any other way. The Oklahoma title V interim approval expires on December 1, 2001. This deadline does not provide adequate time for the State to correct newly identified issues prior to the expiration of interim approval. Allowing the State's program to expire because of issues identified as recently as June 12, 2001 would cause disruption and further delay in the issuance of permits to major stationary sources in Oklahoma. As explained above, we do not believe that title V requires such a result. Rather, the appropriate mechanism for dealing with additional deficiencies that are identified sometime after a program received interim approval, but prior to being granted full approval is a NOD as discussed above. This process provides the State an adequate amount of time after such findings to implement any necessary changes without unduly disrupting the entire state operating permit program. As a result, addressing newly identified problems separately from the full approval process will not cause these issues to go unaddressed. Therefore, the deficiencies EPA identified are not a barrier to granting full approval to States.

The commenter also made several comments regarding a preconstruction permit. Since these comments do not pertain to the action proposed in the Federal Register notice or to Oklahoma's Operating Permits Program, EPA is not providing a response.

The EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the State's program effective on November 30, 2001. In relevant part, the APA provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—* * * (3) as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). Good cause may be supported by an agency determination that a delay in the effective date is “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). The EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. The EPA's interim approval of Oklahoma's program expires on December 1, 2001. In the absence of the full approval of Oklahoma's program taking effect on November 30, the federal program under 40 CFR part 71 would automatically take effect in Oklahoma and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public, and the State of Oklahoma to avoid any gap in coverage of the State program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because Oklahoma has been administering the title V permit program for over five years under an interim approval. Through this action, EPA is approving a few revisions to the existing and currently operational program. The change from the interim approved program, which substantially but not fully met the part 70 requirements, to the fully approved program is relatively minor, in particular if compared to the changes between a state-approved program and the Federal program.

In its program submission, Oklahoma did not assert jurisdiction over Indian country. To date, no tribal government in Oklahoma has applied to EPA for approval to administer a title V program in Indian country within the state. EPA regulations at 40 CFR part 49 govern how eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA's part 71 regulations govern the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

This section contains additional information about our final rulemaking, organized as follows:

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that meet certain federal criteria. The ADEQ, MCESD, and PDEQ operating permits programs were submitted in response to this directive. Because the Arizona programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval to the programs in a rulemaking published on October 30, 1996. See 61 FR 55910. The interim approval notice described the conditions that had to be met in order for the Arizona programs to receive full approval.

The State, Maricopa and Pima revised their title V programs to address the conditions of the interim approval. EPA promulgated proposals to approve the ADEQ, MCESD, and PDEQ programs on October 2, 2001 (66 FR 50136), October 18, 2001 (66 FR 52882), and September 10, 2001 (66 FR 46972), respectively.

EPA received three comment letters on our proposed full approval of the ADEQ program and one comment letter on the Maricopa program. With one exception, all of the comment letters focused exclusively on the need to revise the major source definition in Part 70. EPA published a final rule addressing this issue on November 27, 2001 and therefore EPA is not responding to those comments. EPA's response to the remaining comments on the ADEQ program, submitted by The Arizona Center for Law in the Public Interest (ACLPI), is set out below.

ACLPI objects to language in R18-2-310 that establishes an affirmative defense for violations occurring during startup and shutdown. EPA has proposed to approve the removal of R18-2-310 from the title V program:

In addition to proposing to approve the rules listed in Table 1, EPA is also proposing to approve the removal of R18-2-310, Excess Emissions, from the State's title V program.

ACLPI contends that ADEQ's title V permits routinely require only specific test methods and do not allow for additional credible evidence to be presented to prove, or disprove, an alleged violation. They state that the State's operating permit program does not appear to include EPA's credible evidence rule. ACLPI concludes that, before Arizona's title V program is fully approved, ADEQ must make the necessary changes to include the Credible Evidence Rule.

EPA agrees with the commenter's point that state implementation plans and permits should not bar the use of credible evidence for determining whether a source is in compliance. We disagree, however, with the commenter's suggestion that a permit condition that requires a source to monitor in accordance with a specific method bars the use of additional credible evidence in determining compliance.

The preamble to EPA's Credible Evidence Revisions states that the “regulation merely removes [from 40 CFR parts 51, 52, 60 and 61] what some have construed to be a regulatory bar to the admission of non-reference test data to prove a violation of an emission standard.” See 62 FR 8315, February 24, 1997. One aspect of EPA's review of title V programs and permits includes a determination that no bars to enforcement are included. For example, EPA would consider language such as “compliance shall be determined by test method X” as problematic. Contrary to ACLPI's position, neither the CAA nor EPA's regulations require part 70 programs or permits to include specific references to credible evidence. The presumption is that, absent language precluding its use, credible evidence can be used. ACLPI argues, for example, that the North Star Steel draft permit requires that the permittee shall perform initial and annual performance tests to determine opacity using EPA Method 9. ACLPI suggests that this condition bars the use of credible evidence to prove or disprove an alleged violation. EPA disagrees. Permits must impose monitoring requirements on sources and, in order to be effective, must specify the type of monitoring a source must undertake. See 40 CFR 70.6(a)(3). The language in the draft North Star Steel permit does not bar the use of other credible evidence. It merely sets out the source's monitoring obligations.EPA understands that ADEQ shares our interpretation.

ACLPI commented that Arizona's operating permits program is not approvable because it does not adequately satisfy federal standards and that A.R.S. 49-432 must be amended to accommodate the public's right to have access to information. The opportunity for public comment on EPA's proposed action to grant full approval of the ADEQ program was limited to the issue of whether ADEQ corrected the items EPA had identified as program deficiencies during the interim approval process. Thus, EPA's proposal to grant full approval did not include ADEQ's confidentiality provisions, which EPA had previously approved as part of ADEQ's program. See 61 FR 55915, October 30, 1996. The comment is therefore beyond the scope of this rulemaking. However, EPA will be responding to this same comment, which was also raised by ACLPI during the 90-day public comment period, under separate cover by December 14, 2001.

ACLPI comments that EPA cannot lawfully approve Arizona's major source definition unless EPA completes the rulemaking process that will change the definition in part 70. EPA agrees with ACLPI and in fact took that position in the notice proposing full approval of ADEQ's program. We stated that our full approval of the ADEQ program was contingent on EPA finalizing changes to the major source definition that would result in ADEQ's major source definition being consistent with part 70. See 66 FR 50138, October 2, 2001. EPA finalized these changes in a rule signed by the Administrator on November 19, 2001, and published in the Federal Register on November 27, 2001 (See 66 FR 59161).

ACLPI states that there is no legitimate reason to exclude agricultural equipment from regulation under title V and therefore, EPA cannot fully approve Arizona's title V program until A.R.S. § 49-426(B) is amended to require that agricultural sources count fugitive emissions.

Arizona's program does not exclude agricultural equipment from regulation under title V. As noted in EPA's notice granting interim approval of ADEQ's title V program, the Arizona Attorney General submitted an opinion that the legislature in no way sought to exempt any major sources when it granted an exemption to agricultural equipment used in normal farm operations. The opinion went on to state that this was clarified by AAC R18-2-302(c)(3), which provides that agricultural equipment used in normal farm operations does not include equipment that requires a permit under title V or is subject to a standard under 40 CFR parts 60 or 61. EPA deferred to that opinion, but noted that if there is a successful legal challenge to the ADEQ's regulation, we would revisit this portion of the program approval. See 61 FR 55915, October 30, 1996.

Part 70 currently requires that fugitive emissions generated by sources that are subject to a standard promulgated under section 111 or 112 of the Clean Air Act must be included when determining whether a source is major. Sources are also required to count all fugitive emissions of hazardous air pollutants. Under part 70, fugitive emissions from any agricultural equipment regulated by such standards or that emits hazardous air pollutants must count towards the major source threshold. ADEQ's rules are consistent with this approach.

After carefully reviewing and considering the issues raised by the commenter, EPA is taking final action to give full approval to the Arizona operating permits program.

EPA is granting full approval to the operating permits programs submitted by ADEQ, MCESD, and, Pima based on the revisions submitted for ADEQ on August 11, 1998, May 9, 2001, and September 7, 2001, for MCESD on September 7, 2001, and for PDEQ on May 28, 1998 and November 9, 2001, which satisfactorily address the program deficiencies identified in EPA's October 30, 1996 interim approval (61 FR 55910). EPA is also approving, as title V operating permits program revisions, additional changes made to the Arizona programs. These deficiency corrections and additional program revisions are described in detail in the Federal Register notices proposing full approval of the Arizona programs and their accompanying technical support documents.

In our proposed approvals of the Arizona programs, we noted that ADEQ, MCESD, and PDEQ had revised their major source definition in anticipation of EPA finalizing a previously proposed change (59 FR 44460; August 29, 1994) to the major source definition in part 70. Paragraph (c) of Arizona programs' definition of major source lists source categories that must count fugitives. Subparagraph (xxvii) has been modified to read: “All other stationary source categories regulated by a standard promulgated as of August 7, 1980 under section 111 or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category.” Emphasis added. The addition of this 1980 cutoff date restricts the types of sources that are required to count fugitives towards the major source threshold. At the time of our proposed full approvals this change was inconsistent with part 70. Because EPA's proposed revision to the major source definition would incorporate the 1980 cutoff date we proposed to approve the ADEQ, MCESD, and PDEQ definition of major source contingent on EPA finalizing our proposed change to part 70.

On November 19, 2001, the Administrator signed a rulemaking package that finalized EPA's change to paragraph (2)(xvii) of the part 70 definition of major source. The revised paragraph now reads, “(xvii) Any other stationary source category, which as of August 7, 1980 is being regulated by a standard promulgated under section 111 or 112 of the Act.” This change means that part 70 no longer requires states to provide that sources in categories subject to standards under sections 111 or 112 promulgated after August 7, 1980 must include fugitive emissions in determining major source status under section 302 or part D of title I of the Clean Air Act. As a consequence of this change to part 70, the definition of major source in the Arizona programs is no longer inconsistent with part 70 and is now fully approvable.

In addition to the above described change, EPA has deleted the phrase “but only with respect to those air pollutants that have been regulated for that category” from paragraph (c)(xvii) of the part 70 definition of major source. EPA proposed to delete this phrase in its 1995 supplemental proposal to revise part 70. See 60 FR 45530, August 31, 1995. States, including the Arizona agencies, must revise their part 70 programs accordingly, and submit the revision to EPA within 12 months of the date of publication of the final rule. If a state can demonstrate that additional legal authority is needed, the deadline for submittal of a revised program can be extended to 24 months after EPA's rule is published.

For more details on these changes to the part 70 major source definition, please see the notice signed by the Administrator on November 19, 2001 and published in the Federal Register on November 27, 2001 (See 66 FR 59161). Interested parties can download the final rule from EPA's website on the Internet under recent actions at the following address: http//www.epa.gov/ttn.oarpg/ramain.html.

The rules for which we are granting full approval are listed in the tables below.

This section provides additional information by addressing the following questions:

Title V of the Clean Air Act (the Act) and its implementing regulations at 40 CFR part 70 (part 70) direct all states to develop and implement operating permit programs that meet certain criteria. Operating permit programs are intended to consolidate into single federally enforceable documents all requirements of the Act that apply to individual sources. This consolidation of all of the applicable requirements for a source enables the source, the public, and permitting authorities to more easily determine what requirements of the Act apply and whether the source is complying with them. Sources required to obtain operating permits include “major” sources of air pollution and certain other sources specified in section 501 of the Act and in EPA's regulations at 40 CFR 70.3.

The EPA reviews state programs pursuant to title V of the Act and part 70, which outline the criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements of part 70, EPA may grant the program interim approval which would be effective for two years. If a state does not have in place a fully approved program by the time the interim approval expires, the federal operating permit program under 40 CFR part 71 (part 71) will automatically take effect. Due to unexpected circumstances that affected states' timeliness in developing fully approvable programs, EPA extended the effective date of all interim approvals until December 1, 2001. For any state that has not received full approval from EPA by December 1, 2001, its interim approval will then expire and be immediately replaced by the federal part 71 program. All sources subject to the federal program that do not have final part 70 permits already issued to them by the state will be required to submit a part 71 permit application and the appropriate fees within one year to their respective EPA Regional offices under part 71.

New York State's first version of its operating permit program substantially, but not fully, met the requirements of part 70; therefore, EPA granted interim program approval on November 7, 1996, which became effective on December 9, 1996 (61 FR 57589). In the interim approval rulemaking EPA identified eight issues that needed correction before New York would be eligible for final full approval. New York State submitted a corrected program to EPA on June 8, 1998, which addressed three of the deficiencies. The State submitted a second corrected program to EPA on October 5, 2001, which addressed three additional deficiencies. The latter three corrections were submitted in final form as emergency rules, which will expire on December 21, 2001, unless extended. At the same time, New York submitted proposed permanent rules (which were identical to the emergency rules) which will replace the emergency rules, and which the State is currently in the process of adopting. The State will submit the permanent rules shortly after the completion of the State's public comment process, and before the expiration of the emergency rules.

As discussed in the proposed approval notice (66 FR 53966), EPA no longer considers the remaining two issues to be deficiencies. First, because New York State affords more time than part 70 requires for citizens to file a petition for judicial review, this issue is not considered to be a program deficiency. The second issue related to the definition of “major source.” EPA recently promulgated regulations revising the definition of major source, which is now consistent with the definition included in the New York State operating permit program. As such, there is no longer a program deficiency with respect to this definition.

On October 25, 2001, EPA proposed full approval of New York State's title V operating permit program and provided the public a period of 30 days to submit comments on EPA's proposed action (66 FR 53966). The proposed approval concerned the three permanent rules submitted on June 8, 1998 (effective on June 26, 1998) as well as the emergency and draft permanent rules submitted on October 5, 2001. During the 30-day comment period, EPA received one comment letter dated November 23, 2001, from the New York Public Interest Research Group (NYPIRG). The comments contained in that letter are addressed below.

On November 23, 2001, we received a comment letter from NYPIRG on the proposed full approval of the New York program. In this notice, we are only addressing the comments which relate to our determination that New York has corrected the interim approval deficiencies in its title V program. Most of the comments submitted by NYPIRG are outside the scope of this action because they do not address the interim approval deficiencies and the subsequent correction of these deficiencies. Some of these issues have been raised previously by NYPIRG, either in its April 13, 1999 petition on the New York State Title V program, in subsequent facility specific petitions, or in its March 11, 2001 letter submitted in response to EPA's December 2000 notice.

Of the remaining comments, four are new allegations of deficiencies in the New York State Title V program. That is, these allegations were not submitted in response to EPA's December 2000 notice that alerted the public to identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in state operating permit programs. These four comments are also outside of the scope of the eight issues identified by EPA in the November 7, 1996 Federal Register notice granting interim program approval to New York State. Nonetheless, EPA will investigate these allegations to ascertain whether they constitute a deficiency in the New York State's Title V program, and EPA will respond appropriately.

In its comment letter, NYPIRG challenged our ability to proceed with full approval of New York's program when, according to the comment, the program does not clearly conform to the requirements of part 70.

EPA is aware that issues other than those listed in the November 7, 1996, interim approval may exist in the New York program. EPA agrees that these issues must be addressed. For the reasons discussed below, however, we disagree that newly identified deficiencies that may exist prohibit us from granting New York full program approval at this time.

In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 to 7671q (“CAA” or “Act”), by adding title V, 42 U.S.C. 7661 to 7661f, which requires certain air pollutant emitting facilities, including “major source[s]” and “affected source[s],” to obtain and comply with operating permits. See 42 U.S.C. 7661a(a). Title V is intended to be administered by local, state or interstate air pollution control agencies, through permitting programs that have been approved by EPA. See 42 U.S.C. 7661a(a). EPA is charged with overseeing the State's efforts to implement an approved program, including reviewing proposed permits and vetoing improper permits. See 42 U.S.C. §§ 7661a(i) and 7661d(b). Accordingly, Title V of the CAA provides a framework for the development, submission and approval of state operating permit programs. Following the development and submission of a state program, the Act provides two different approval options that EPA may utilize in acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to section 502(d), EPA “may approve a program to the extent that the program meets the requirements of the Act * * *” EPA may act on such program submittals by approving or disapproving, in whole or in part, the state program. An alternate option for acting on state programs is provided by the interim approval provision of section 502(g). This section states: “If a program * * * substantially meets the requirements of this title, but is not fully approvable, the Administrator may by rule grant the program interim approval.” This provision provides EPA with the authority to act on State programs that substantially, but do not fully, meet the requirements of Title V and part 70. Only those program submittals that meet the requirements of eleven key program areas are eligible to receive interim approval. See 40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to “specify the changes that must be made before the program can receive full approval.” 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit directive encompasses another, implicit one: Once a state corrects the specified deficiencies then it will be eligible for full program approval. EPA believes this is so even if deficiencies have been identified sometime after final interim approval, either because the deficiencies arose after EPA granted interim approval or, if the deficiencies existed at that time, EPA failed to identify them as such in proposing to grant interim approval.

Thus, an apparent tension exists between these two statutory provisions. Standing alone, section 502(d) appears to prevent EPA from granting a state operating permit program full approval until the state has corrected all deficiencies in its program no matter how insignificant, and without consideration as to when such deficiency was identified. Alternately, section 502(g) appears to require that EPA grant a state program full approval if the state has corrected those issues that the EPA identified in the final interim approval. The central question, therefore, is whether New York by virtue of correcting the deficiencies identified in the final interim approval is eligible at this time for full approval, or whether New York must also correct any new or recently identified deficiencies that may exist as a prerequisite to receiving full program approval.

According to settled principles of statutory construction, statutory provisions should be interpreted so that they are consistent with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent statutory provisions, it must give maximum possible effect to all of the provisions, while remaining within the bounds of its statutory authority. Id. at 870-71. Whenever possible, the agency's interpretation should not render any of the provisions null or void. Id. Courts have recognized that agencies are often delegated the responsibility to interpret ambiguous statutory terms in such a fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always possible, however, and furthermore should not be sought if it requires distorting the language in a fashion never imagined by Congress. Citizens to Save Spencer County, 600 F.2d at 870.

In this situation, in order to give effect to the principles embodied in Title V that major stationary sources of air pollution be required to have an operating permit that conforms to certain statutory and regulatory requirements, and that operating permit programs be administered and enforced by state permitting authorities, the appropriate and more cohesive reading of the statute recognizes EPA's authority to grant New York full approval in this situation while working simultaneously with the state, in its oversight capacity, on any additional problems that were recently identified. To conclude otherwise would disrupt the current administration of the state program and cause further delay in the state's ability to issue operating permits to major stationary sources. A smooth transition from interim approval to full approval is in the best interest of the public and the regulated community and best reconciles the statutory directives of Title V.

Furthermore, requiring the State to fix all of the deficiencies that may exist and that have been recently identified prior to receiving full approval runs counter to the established regulatory process that is already in place to deal with newly identified program deficiencies. Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 70.10 provide EPA with the authority to issue notices of deficiency (“NOD”) whenever EPA makes a determination that a permitting authority is not adequately administering or enforcing a part 70 program, or that the State's permit program is inadequate in any other way. Consistent with these provisions, in its NOD EPA will specify a reasonable time frame for the permitting authority to correct the identified deficiency. The New York Title V interim approval expires on December 1, 2001. This deadline does not provide adequate time for the State to correct newly identified issues that may exist prior to the expiration of interim approval. Allowing the State's program to expire because of issues identified as recently as March 2001 will cause disruption and further delay in the issuance of permits to major stationary sources in New York. As explained above, we do not believe that Title V requires such a result. Rather, the appropriate mechanism for dealing with additional deficiencies that are identified sometime after a program received interim approval but prior to being granted full approval is the notice of program deficiency or administration deficiency as discussed herein. This process provides the State an adequate amount of time after such findings to implement any necessary changes without unduly disrupting the entire state operating permit program. As a result, addressing newly identified problems separately from the full approval process will not cause these issues to go unaddressed. Moreover, proceeding in this manner allows for a more rational and orderly method for addressing new issues as they arise.

In addition, NYPIRG submitted one comment that directly relates to New York's full program approval process. This comment relates to the definition of “major source.” NYPIRG commented that EPA can only grant full approval if a program complies with part 70 as it exists on the date of full program approval. That is, approval cannot be based on a determination that a program complies with proposed regulations. EPA agrees. The decision to grant full approval is based on the fact that the definition of major source in New York State's program is now consistent with the definition in part 70. In EPA's proposed approval of the New York State program, it was noted that the agency had proposed revisions to part 70 relative to the major source definition that, when finalized, would be consistent with the definition in New York's rules. New York's definition of major source, which lists source categories that must include fugitive emissions in determining major source status reads, in part: “All other source categories regulated by a standard under Sections 111, for which EPA has completed a rulemaking proceeding under 302(j) of the Act or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category as of the effective date of this Part.” On November 27, 2001, the Agency published in the Federal Register a rule that finalized EPA's change to paragraph (2)(xvii) of the part 70 definition of major source. See 66 FR 59161, November 27, 2001. The revised paragraph now reads, “(xvii) Any other stationary source category, which as of August 7, 1980 is being regulated by a standard promulgated under section 111 or 112 of the Act.” This change means that part 70 no longer requires states to provide that sources in categories subject to standards under sections 111 or 112 promulgated after August 7, 1980 must include fugitive emissions in determining major source status under section 302 or part D of title I of the Act. The definition of major source in the New York program is now consistent with part 70. Although the New York definition is different than the EPA definition, the State's definition covers at least the same source categories as part 70 (as revised) and, therefore, it is now fully approvable.

In addition to the above described change, EPA has deleted the phrase “but only with respect to those air pollutants that have been regulated for that category” from paragraph (c)(xvii) of the part 70 definition of major source. EPA proposed to delete this phrase in its 1995 supplemental proposal to revise part 70. See 60 FR 45530, August 31, 1995. States, including New York, must revise their part 70 programs accordingly, and submit the revision to EPA within 12 months of the date of publication of the final rule. If a state can demonstrate that additional legal authority is needed, the deadline for submittal of a revised program can be extended to 24 months after EPA's rule is published.

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permit programs until December 1, 2001. (65 FR 32035). The action was subsequently challenged by the Sierra Club and NYPIRG. In settling the litigation, EPA agreed to publish a notice in the Federal Register that would alert the public that they may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in title V programs and that EPA would respond to their allegations within specified time periods if the comments were made within 90 days of publication of the Federal Register notice. EPA published that notice on December 11, 2000. (65 FR 77276).

Several citizens commented on what they believe to be deficiencies with respect to the New York State Title V program. As stated in the Federal Register notice published on October 25, 2001 proposing to fully approve New York State's operating permit program, EPA takes no action on those comments in today's action. Rather, EPA expects to respond by December 14, 2001, to timely public comments on programs that had obtained interim approval, and by April 1, 2002, to timely comments on fully approved programs. EPA will publish a notice of deficiency (NOD) when it is determined that a deficiency exists, or EPA will notify the commenter in writing to explain the agency's reasons for not making a finding of deficiency. In addition, EPA will publish a notice of availability in the Federal Register notifying the public that the agency has responded in writing to these comments and how the public may obtain a copy of such a response. An NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that EPA has identified through its program oversight. Furthermore, in the future, EPA may issue an additional NOD if EPA or a citizen identifies other deficiencies.

The details on the program changes can be found in EPA's proposed action which was published in the October 25, 2001 issue of the Federal Register (see 66 FR 53966). In summary, EPA approves the three rule revisions that became effective on June 26, 1998, and the three other rule revisions that were promulgated pursuant to emergency rulemaking on September 21, 2001.

The State of New York has adequately fulfilled the conditions of the interim approval promulgated on November 7, 1996. EPA is therefore taking final action to fully approve New York State's operating permit program as revised by the three permanent rules submitted on June 8, 1998 and the three emergency rules submitted on October 5, 2000. However, as previously discussed, since the emergency rules expire on December 21, 2001, unless extended, this final full approval will expire if EPA has not approved the State's revised permanent rules before the emergency rules expire. New York State has commenced a separate rulemaking proposal (that is, the “normal” rulemaking process utilized in the State of New York, including the opportunity for public participation), containing the identical regulatory changes. The permanent rules will replace the “emergency” rules once the rulemaking proposal is finalized. Today's approval, however, is contingent upon the final permanent rules being substantively the same as the draft rules on which EPA proposed this action and which were the same as the emergency rules that are already in effect. Once these permanent rules become effective, EPA will promulgate another final program approval to replace this action. In the interim, the emergency rules will still be in effect and, therefore, New York will still have a fully approved program. If the State of New York fails to adopt rules that are effective before expiration of the emergency rules, then the New York State operating permit program will expire and the federal part 71 program will automatically take effect. As previously discussed, if necessary, EPA will publish a notice in the Federal Register within two weeks of the effective date of the federal program.

New York State may revise its operating permit program as appropriate in the future by following the procedures stipulated in 40 CFR 70.4(i). EPA may also exercise its oversight authorities under section 502(i) of the Act to require changes to the State's program consistent with the procedure stipulated in 40 CFR 70.10.

In its program submittal, New York State did not assert jurisdiction over Indian country. To date, no tribal government in New York has applied to EPA for approval to administer a title V program in Indian country within the State. On February 12, 1998, EPA promulgated regulations (40 CFR part 49) under which eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA has promulgated regulations (40 CFR part 71) governing the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA , (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the State's program effective on November 30, 2001. In relevant part, section 553(d) provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—* * * (3) as otherwise provided by the agency for good cause found and published with the rule.” Good cause may be supported by an agency determination that a delay in the effective date is “impracticable, unnecessary, or contrary to the public interest.” APA section 553(b)(3)(B). EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. EPA's interim approval of New York State's program expires on December 1, 2001. In the absence of this full approval taking effect on November 30, the federal part 71 program would automatically take effect in New York State and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public and the State to avoid any gap in coverage of the State program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because New York has been administering the title V permit program for five years under an interim approval. Through this action, EPA is approving revisions to the existing and currently operational program. The change from the interim approved program which substantially but did not fully meet the part 70 requirements, to the fully approved program is relatively minor, in particular if compared to the changes between a state-approved program and the federal program. Finally, sources are already complying with many of the newly approved requirements as a matter of state law. Thus, there is little or no additional burden with complying with these requirements under the federally approved State program.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

The Clean Air Act (CAA) Amendments of 1990 require all state and local permitting authorities to develop operating permits programs that meet certain Federal criteria. The State of Alaska submitted a program in response to this directive. EPA granted interim approval to Alaska's air operating permits program on December 5, 1996, (61 FR 64463). The interim approval notice identified 19 remaining conditions that Alaska must meet in order to receive full approval of its Title V operating permits program.

After Alaska revised its operating permits program to address the conditions of the interim approval, EPA promulgated a proposal to approve Alaska's Title V operating permits program on July 26, 2001, (66 FR 38966). At the same time, because EPA viewed the proposal as a noncontroversial action and did not anticipate adverse public comment on the proposal, EPA also published a direct final rule approving the Alaska operating permits program (66 FR 38940). EPA received one adverse public comment on the proposal. Therefore, EPA removed the direct final approval on September 20, 2001, (66 FR 48357). After carefully reviewing and considering the issues raised by the commenter, EPA is taking final action to give full approval to the Alaska operating permits program.

EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the state's program effective on November 30, 2001. In relevant part, the APA provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except— * * * (3) as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may be supported by an agency determination that a delay in the effective date is impracticable, unnecessary, or contrary to the public interest. EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. EPA's interim approval of Alaska's prior program expires on December 1, 2001. In the absence of this full approval of Alaska's amended program taking effect on November 30, the federal program under 40 CFR part 71 would automatically take effect in Alaska and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public and the State of Alaska to avoid any gap in coverage of the state program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because Alaska has been administering the Title V permit program for nearly five years under an interim approval. Through this action, EPA is approving a few revisions to the existing and currently operational program. The change from the interim approved program which substantially met the part 70 requirements, to the fully approved program is relatively minor, in particular if compared to the changes between a state-established and administered program and the federal program.

EPA received one comment letter in response to our July 26, 2001, (66 FR 38966) proposed approval notice for the Alaska Title V operating permits program. The commenter stated that EPA should withhold approval of Alaska's program until two issues were resolved. First, the commenter stated that “Alaska's plan is not yet in compliance with the federal Clean Air Act and its implementing regulations (40 CFR part 70).” The commenter argued that Alaska had failed to meet several Title V requirements, including the requirement to include monitoring, recordkeeping and reporting sufficient to assure compliance with and enforcement of each applicable requirement. Second, the commenter stated that “there is an ongoing review of Alaska's entire Title V program that will not be completed until December 1, 2001.” The comments provided to EPA in response to our July 26, 2001, (66 FR 38966) proposed approval notice for Alaska were made by the same party and raised issues that had previously been discussed in the commenter's letter submitted on March 12, 2001, in response to 65 FR 77376 (December 11, 2000).

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs, including Alaska, until December 1, 2001 (65 FR 32035). The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the Federal Register that would alert the public that they may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in Title V programs that had received interim or full approval. This notice was published on December 11, 2000 (65 FR 77376). In the notice, EPA committed to respond to the merits of any such claims of deficiency on or before December 1, 2001, for those states, such as Alaska, that have received interim approval and on or before April 1, 2002, for states that have received full approval.

As noted above, one citizen organization commented on what it believes to be deficiencies with respect to the Alaska Title V program. EPA takes no action on those comments in today's action. Rather, EPA expects to respond by December 14, 2001, to timely public comments on programs that have obtained interim approval, and by April 1, 2002, to timely comments on fully approved programs. We will publish a notice of deficiency (NOD) when we determine that a deficiency exists, or we will notify the commenter in writing to explain our reasons for not making a finding of deficiency. In addition, we will publish a notice of availability in the Federal Register notifying the public that we have responded in writing to these comments and how the public may obtain a copy of our response. A NOD will not necessarily be limited to deficiencies identified by citizens, and may include any deficiencies that we have identified through our program oversight. Furthermore, in the future, EPA may issue an additional NOD if EPA or a citizen identifies other deficiencies.

For the reasons described below, EPA is not in the context of this action responding to the comments submitted after the December 11, 2000, notice that identify potential new deficiencies.

The commenter referred to the ongoing review of Alaska's Title V program, and took the position that EPA should not grant full approval to Alaska's program until that review is completed. In support of this, the commenter asserted that the subject matter of the ongoing review, namely, the adequacy of the Alaska Title V program, is essentially the same as the subject matter of the proposal to fully approve the Alaska program. The commenter stated that EPA must base its decision of whether to grant full approval on the adequacy of the Alaska program as it currently exists, not as it existed at the time of interim approval. The commenter further stated that EPA must take into account any deficiency existing in the Alaska program, regardless of whether it had been identified in the granting of interim approval. According to the commenter, any other position would eviscerate EPA's oversight responsibilities.

For the reasons discussed below, we disagree that any deficiencies that may be identified following interim approval would prohibit us from granting Alaska full program approval at this time.

In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 to 7671q (“CAA” or “Act”), by adding Title V, 42 U.S.C. 7661 to 7661f, which requires certain air pollutant emitting facilities, including “major source[s]” and “affected source[s],” to obtain and comply with operating permits. See 42 U.S.C. 7661a(a). Title V is intended to be administered by local, state or interstate air pollution control agencies, through permitting programs that have been approved by EPA. See 42 U.S.C. 7661a(a). EPA is charged with overseeing the State's efforts to implement an approved program, including reviewing proposed permits and vetoing improper permits. See 42 U.S.C. 7661a(i) and 7661d(b). Accordingly, Title V of the CAA provides a framework for the development, submission and approval of state operating permits programs. Following the development and submission of a state program, the Act provides two different approval options that EPA may utilize in acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to section 502(d), EPA “may approve a program to the extent that the program meets the requirements of the Act * * *” EPA may act on such program submittals by approving or disapproving, in whole or in part, the state program. An alternative option for acting on state programs is provided by the interim approval provision of section 502(g). This section states: “If a program * * * substantially meets the requirements of this title, but is not fully approvable, the Administrator may by rule grant the program interim approval.” This provision provides EPA with the authority to act on State programs that substantially, but do not fully, meet the requirements of Title V and part 70. Only those program submittals that meet the requirements of eleven key program areas are eligible to receive interim approval. See 40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to “specify the changes that must be made before the program can receive full approval.” 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit directive encompasses another, implicit one: Once a state corrects the specified deficiencies then it will be eligible for full program approval. EPA believes this is so even if deficiencies have been identified sometime after final interim approval, either because the deficiencies arose after EPA granted interim approval or, if the deficiencies existed at that time, EPA failed to identify them as such in proposing to grant interim approval.

Thus, an apparent tension exists between these two statutory provisions. Standing alone, section 502(d) appears to prevent EPA from granting a state operating permits program full approval until the state has corrected all deficiencies in its program no matter how insignificant, and without consideration as to when such deficiency was identified. Alternatively, section 502(g) appears to require that EPA grant a state program full approval if the state has corrected those issues that the EPA identified in the final interim approval. The central question, therefore, is whether Alaska, by virtue of correcting the deficiencies identified in the final interim approval, is eligible at this time for full approval, or whether Alaska must also correct any new or recently identified deficiencies that may exist, as a prerequisite to receiving full program approval.

According to settled principles of statutory construction, statutory provisions should be interpreted so that they are consistent with one another. See Citizens to Save Spencer County v. EPA , 600 F.2d 844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent statutory provisions, it must give maximum possible effect to all of the provisions, while remaining within the bounds of its statutory authority. Id. at 870-71. Whenever possible, the agency's interpretation should not render any of the provisions null or void. Id. Courts have recognized that agencies are often delegated the responsibility to interpret ambiguous statutory terms in such a fashion. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 845 (1984). Harmonious construction is not always possible, however, and furthermore should not be sought if it requires distorting the language in a fashion never imagined by Congress. Citizens to Save Spencer County , 600 F.2d at 870.

In this situation, in order to give effect to the principles embodied in Title V that major stationary sources of air pollution be required to have an operating permit that conforms to certain statutory and regulatory requirements, and that operating permits programs be administered and enforced by state permitting authorities, the appropriate and more cohesive reading of the statute recognizes EPA's authority to grant Alaska full approval in this situation while working simultaneously with the state, in its oversight capacity, on any additional issues that were recently identified. To conclude otherwise would disrupt the current administration of the state program, by causing the program to transfer to administration by EPA, and would cause further delay in Alaska's ability to issue operating permits to major stationary sources. A smooth transition from interim approval to full approval is in the best interest of the public and the regulated community and best reconciles the statutory directives of Title V.

Furthermore, requiring the State to address the deficiencies, if there are any, that have been identified in the past year to receive full approval runs counter to the established regulatory process that is already in place to deal with newly identified program deficiencies. Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 70.10 provides EPA with the authority to issue notices of deficiency (“NOD”) whenever EPA makes a determination that a permitting authority is not adequately administering or enforcing a part 70 program, or that the State's permit program is inadequate in any other way. Consistent with these provisions, in its NOD EPA will specify a reasonable time frame for the permitting authority to correct any identified deficiency. The Alaska Title V interim approval expires on December 1, 2001. This deadline does not provide adequate time for the State to correct newly identified issues prior to the expiration of interim approval. Allowing the State's program to expire because of issues identified as recently as March 2001, will cause disruption and further delay in the issuance of permits to major stationary sources in Alaska. As explained, Title V does not require such a result. Rather, the appropriate mechanism for dealing with additional deficiencies that are identified sometime after a program received interim approval but prior to being granted full approval is the notice of program deficiency or administration deficiency as discussed herein. This process provides the State an adequate amount of time after such findings to implement any necessary changes without disrupting the continuity of the state operating permits program. Addressing newly identified issues on a separate track from the granting of full approval still ensures that these issues will be addressed in due course. Rather than undermining EPA's oversight authority as the commenter suggests, proceeding in this manner allows for a more rational and orderly method for addressing new issues as they arise.

At this time, EPA has identified one concern regarding the Alaska Title V program for which it has asked the State for an immediate response. This concern relates to the rate of Title V permit issuance by Alaska. In response to EPA's request, Alaska has provided EPA with a commitment letter that includes a timeline and milestones for issuance of remaining permits. Specifically, the State has committed to issuing all outstanding Alaska Title V air operating permits on or before December 1, 2003. EPA is satisfied that this timeline for issuance of remaining permits represents reasonable progress towards issuance of all permits. Accordingly, EPA is not issuing a notice of deficiency because the State's commitment that future permits will be issued consistent with state and federal requirements addresses EPA's concern. However, it will be important to ensure that the State actually meets this commitment. EPA will monitor the State's efforts over the next two years to ensure the State is proceeding on a pace to meet the commitment and that the commitment is ultimately met.

In its program submission, Alaska did not assert jurisdiction over Indian country. To date, no tribal government in Alaska has applied to EPA for approval to administer a title V program in Indian country within the state. EPA regulations at 40 CFR part 49 govern how eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA's part 71 regulations govern the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA , (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permits programs submitted pursuant to Title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permits program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permits program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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. section 804(2). This rule will be effective November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

This section contains additional information about our final rulemaking, organized as follows:

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that meet certain federal criteria. Clark County, Washoe County, and NDEP submitted their operating permits programs in response to this directive. Because the Clark County, Washoe County, and NDEP programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval to each program in three separate rulemakings, published on July 13, 1995 (60 FR 36070), January 5, 1995 (60 FR 1741), and December 12, 1995 (60 FR 63631), respectively. Each interim approval notice described the conditions that had to be met in order for the programs to receive full approval.

After Clark County, Washoe County, and NDEP revised their programs to address the conditions of interim approval, EPA proposed to approve all three title V operating permits programs on October 10, 2001 (66 FR 51620).

EPA received two comment letters during the public comment period. Mr. Robert Hall, Nevada Environmental Coalition, submitted a letter on November 9, 2001 commenting on our proposed approval of the Clark County program and NDEP submitted a letter on November 9, 2001 commenting on our proposed approval of the Nevada program. Copies of these letters are included in the docket for this rulemaking maintained at the EPA Region 9 office.

Mr. Hall, president of the NEC, raised numerous issues in his comment letter with respect to DAQM's implementation of the Clean Air Act. EPA responds below to those comments that are germane to EPA's proposal on October 10, 2001, to approve the Clark County DAQM operating permits program based upon the specific revisions made to the Clark County program addressing their interim approval deficiencies. However, many of Mr. Hall's comments relate to non-title V air permitting issues or to title V program issues that were not the subject of EPA's proposed action. Both categories of comments are beyond the scope of EPA's proposed action, which pertained specifically to whether Clark County had corrected the issues identified as deficiencies when EPA granted the program interim approval. In this notice, EPA is not responding to comments submitted by Mr. Hall that are beyond the scope of our present rulemaking. Nevertheless, many of the concerns raised by Mr. Hall are similar to issues that he raised in his comment letter submitted in response to EPA's 90-day public comment period that provided members of the public an opportunity to identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in title V programs. (65 FR 77376, December 11, 2000) The 90-day comment period was made available as part of EPA's settlement of a lawsuit over EPA's extension of all title V operating permits program interim approvals. As described in section III.D of this notice, EPA expects to respond in writing to Mr. Hall's earlier comments by December 14, 2001.

Set out below are the relevant issues raised by Mr. Hall in his comment letter and EPA's responses to the issues.

Mr. Hall argues that because the title V program interim approval was originally granted to the Clark County Health District and revisions to the interim approved program were submitted by the Health District, EPA cannot grant full approval of the title V program to the Clark County Department of Air Quality Management. Mr. Hall contends that the Clark County program submittal is legally insufficient unless the revised program is re-written and re-submitted in the name of the Clark County Department of Air Quality Management.

As EPA noted in our proposed approval of the Clark County title V program (66 FR 51620, October 10, 2001), on August 7, 2001, the Governor of Nevada officially transferred responsibility for air quality management in Clark County from the County's Health District to the newly created Department of Air Quality Management, overseen by the Board of County Commissioners of Clark County. In a letter dated June 21, 2001 to the Clark County Commission, Governor Guinn designates “the Board of County Commissioners as the regulatory, enforcement and permitting authority for implementing applicable provisions of the federal Clean Air Act, any amendments to that Act, and any regulations adopted pursuant to that Act within Clark County.” The change is essentially a shift in the organizational location of the County's air quality management program and all rules, regulations, and policies of the Health District that comprise Clark County's title V operating permits program were carried over to the new Department, pursuant to the Governor's designation.

In addition, the revised Clark County title V operating permits program was submitted by Allen Biaggi, Administrator of the Nevada Division of Environmental Protection, on behalf of Nevada Governor Kenny C. Guinn, as his appointed designee. Thus, the commenter's suggestion that the revised Clark County program submittal was made by an entity lacking the necessary legal authority under part 70 is clearly not the case. Moreover, DAQM has assured EPA that it assumes all air quality management commitments made by the County's Health District. For these reasons, EPA believes it is appropriate that full title V program approval is granted to the Clark County Department of Air Quality Management.

Mr. Hall also comments that the applicant submitted, as part of its revised title V operating permits program, local regulations that are not approved into the Nevada State Implementation Plan (SIP), and that the submittal should have contained only rules that are SIP-approved. The commenter also claims that the applicant does not identify the versions (by date of adoption) of the rules submitted.

The rules revised by Clark County to address interim approval deficiencies are Sections 0 (“Definitions”) and 19 (“Part 70 Operating Permits”). Mr. Hall is correct that neither of these two rules are currently SIP-approved. However, Mr. Hall is mistaken in his belief that the rules constituting an agency's title V operating permits program need to be approved into the SIP. The establishment of operating permits programs is separate and distinct from the state implementation plan process. The statutory requirements for operating permit programs are contained in title V of the CAA (42 U.S.C. 7661-7661f), whereas the statutory requirements for state implementation plans are contained in title I of the Act (42 U.S.C. 7410). Nothing in the Act requires the local regulations relied upon by agencies for establishing permitting programs under title V of the Act to be incorporated into the state implementation plans required under title I of the Act.

Further, EPA's regulations implementing title V, which are codified at 40 CFR part 70, require that submitted operating permits programs include identification of “the specific statutes, administrative regulations, and, where appropriate, judicial decisions that demonstrate adequate authority” to carry out all aspects of the program, and that the statutes and regulations cited “shall be in the form of lawfully adopted State statutes and regulations. * * *” ( See 40 CFR 70.4). While these statutes and regulations clearly need to be consistent with the requirements of title V and 40 CFR part 70, they do not need to be part of the State's implementation plan. EPA has determined that the revisions Clark County made to Sections 0 and 19 are consistent with the requirements of part 70, which makes the revisions approvable as part of Clark County's title V operating permits program.

As for Mr. Hall's assertion that the revised Clark County submittal does not identify the versions of the rules upon which it is based, EPA disagrees. The revised Clark County program submittal clearly identifies the versions of Sections 0 and 19 (the two regulations revised specifically to address interim approval deficiencies) as being those adopted by Clark County on May 24, 2001.

Mr. Hall further comments that Clark County's revised title V program submittal contains a revision to a regulation (Clark County Section 0—Definitions) that was recently vacated by the 9th Circuit Court of Appeals. The commenter claims that since the date of EPA's proposed approval of the Clark County title V program (October 10, 2001) is well after the date of the court's decision to vacate EPA's approval of Clark County's Section 0 (August 29, 2001), EPA has erred in its proposal to grant full approval to the Clark County program, which relies, in part, on this vacated rule section.

The commenter is correct that EPA's final rulemaking approving Clark County Section 0 (“Definitions”) and other rules into the Clark County portion of the Nevada SIP was recently vacated by the court. Mr. Hall is also correct that the revised Clark County operating permits program relies, in part, on the definitions in Section 0. However, the commenter is incorrect in his evaluation of the impact of the court's action relative to the County's title V program. While the court did vacate EPA's approval of Section 0 into the SIP, this action does not vacate Section 0 as a valid Clark County regulation. Section 0 remains valid and legally enforceable by Clark County. As noted in our response to issue 2 above, EPA regulations require that the rules comprising programs submitted for approval under part 70 must be enforceable by the State (or local entity), not EPA, and must meet the requirements of part 70. The Clark County title V program was granted only interim approval, in part, because the definition of “applicable requirement” in Section 0 did not match the definition in 40 CFR 70.3. EPA is now granting full approval to the revised Clark County operating permits program because all of its interim approval deficiencies have been fixed, including Clark County's modification of the definition of “applicable requirement” in Section 0. Since Clark County's revised definition of applicable requirement is consistent with part 70 and is contained in a rule (Section 0) that is valid and legally enforceable by Clark County, EPA believes that this interim program deficiency previously identified by the Agency has been fully resolved.

The commenter also cites his belief that the requirements of the CAA and 40 CFR part 70 were not met when EPA extended interim approval of the Clark County title V operating permits program more than two years beyond the August 14, 1995 initial interim approval date. Mr. Hall further claims that EPA is required to implement a federal permitting program in Clark County and to impose sanctions as set forth in 40 CFR 70.10.

On August 29, 1997, EPA published a final rule in the Federal Register extending interim approval of operating permits programs nationwide to October 1, 1998 (62 FR 45732). In further rulemakings, EPA extended interim approvals again, ultimately promulgating a final rule on May 22, 2000 extending all operating permits program interim approvals up to December 1, 2001 (65 FR 32035). Section 307(b)(1) of the CAA requires in pertinent part that “[a]ny petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register .* * *” The sixty day window for filing challenges to the current interim approval extension closed on July 21, 2000. Clearly, Mr. Hall's current claim that EPA unlawfully extended interim approval of the Clark County operating permits program and his request that EPA impose a federal part 71 program and sanctions against Clark County is not within the statutorily-mandated timeframe for such appeals.

Moreover, a timely challenge to EPA's subsequent extension of all operating permits program interim approvals was brought in the Court of Appeals for the D.C. Circuit against EPA, and a settlement agreement resolving this challenge was entered November 21, 2000, in Sierra Club and the New York Public Interest Research Group v EPA . A component of that settlement agreement was that EPA would amend 40 CFR part 70 to clarify that all existing interim approved programs expire on December 1, 2001 and cannot be extended. EPA is, therefore, acting in accordance with existing regulations in granting final title V operating permits program approval to Clark County, effective November 30, 2001, based on Clark County's revisions to their program which adequately addressed all interim approval deficiencies.

After carefully reviewing and considering the issues raised by Mr. Hall, EPA is taking final action to give full approval to the Clark County operating permits program.

NDEP submitted a letter commenting on EPA's October 10, 2001 notice, in which the Agency proposed to take no action on four rule changes made by the State that were not required as conditions for receiving full program approval. Specifically, EPA proposed to take no action on the State's changes to Nevada Administrative Code (NAC) sections 445B.094, 445B.187, 445B.290, and 445B.294 because EPA deemed these changes to be unapprovable.

In its letter, NDEP requested that EPA reconsider approval of sections 445B.094 and 445B.290 in our final rulemaking. As noted in the technical support document (TSD) for our proposed action, EPA was concerned that NAC section 445B.094 (the definition of “major source”) did not provide a major source threshold for PM 10 sources in attainment areas nor in PM 10 nonattainment areas that are not classified as “serious” because of an exclusion in section 445B.094. NDEP clarified in their comments that the exclusion in section 445B.094 applies only to particulate matter greater than 10 microns in size. Thus, there is no exclusion for PM 10 , which is particulate matter less than 10 microns in size. EPA's concern about NAC section 445B.290 (“Class I-B application for Class I operating permit; filing requirement”) was that it appeared to not require certain nonmajor affected sources to apply for a Class I permit. NDEP's comments clarified that when section 445B.290 is read together with the “Class I source” definition at NAC 445B.036, there is a clear requirement that all affected sources apply for and obtain Class I operating permits.

EPA agrees with NDEP that the revisions to NAC sections 445B.094 and 445B.290 are consistent with the requirements of part 70 and today's action grants approval to these two additional changes as part of our full approval of the NDEP operating permits program.

EPA is granting full approval to the operating permits programs submitted by Clark County, Washoe County, and NDEP based on the revisions submitted on June 1, 2001, May 8, 2001, and May 30, 2001, respectively. The revisions submitted by the three agencies satisfactorily address the program deficiencies identified in EPA's interim approvals published on July 13, 1995 for Clark County (60 FR 36070), January 5, 1995 for Washoe County (60 FR 1741), and December 12, 1995 for NDEP (60 FR 63631).

In addition, EPA is approving, as a revision to NDEP's title V program, several additional rule changes made by the State, including the revisions described in section II.B above to sections 445B.094 (definition of major source) and 445B.290 (class I operating permit filing requirement) upon which EPA had proposed to take no action. As discussed in greater detail in the proposal, EPA also approves a revision to NAC section 445B.138, the definition of potential to emit (“PTE”), based on NDEP's representations that it will implement the PTE definition in a manner that is consistent with judicial decisions and EPA policies. In the future, if NDEP does not implement the PTE definition consistent with our guidance, and/or has not established a sufficient compliance incentive absent federal and citizen's enforceability, EPA could find that the State has failed to administer or enforce its program and may take action as authorized by 40 CFR 70.10(b). Finally, EPA also finalizes the other rule revisions listed in Table 1 of EPA's October 10, 2001 proposed rulemaking.

EPA is using the good cause exception under the Administrative Procedures Act (APA) to make the full approval of the Clark County, Washoe County, and NDEP programs effective on November 30, 2001. In relevant part, the APA provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—. . . (3) as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may be supported by an agency determination that a delay in the effective date is impracticable, unnecessary, or contrary to the public interest. EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before December 1, 2001. EPA's interim approval of the Clark County, Washoe County, and NDEP programs expires on December 1, 2001. In the absence of this full approval of the amended programs taking effect on November 30, the federal program under 40 CFR part 71 would automatically take effect statewide in Nevada and would remain in place until the effective date of fully-approved programs. EPA believes it is in the public interest for sources, the public and the State and local permitting authorities to avoid any gap in coverage of the part 70 program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because Clark County, Washoe County, and NDEP have been administering title V permit programs for 6 years under an interim approval. Through this action, EPA is approving a few revisions to the existing and currently operational programs. The change from the interim approved programs which substantially met the part 70 requirements, to the fully approved programs is relatively minor, in particular if compared to the changes between state and locally-established and administered programs and the federal program.

In their program submissions, Clark County, Washoe County, and NDEP did not assert jurisdiction over Indian country. To date, no tribal government in Nevada has applied to EPA for approval to administer a title V program in Indian country within the state. EPA regulations at 40 CFR part 49 govern how eligible Indian tribes may be approved by EPA to implement a title V program on Indian reservations and in non-reservation areas over which the tribe has jurisdiction. EPA's part 71 regulations govern the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michigan v. EPA , (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as if it is Indian country, and remanding to EPA for further proceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation of part 71 in Indian country in a future action.

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001. (65 FR 32035) The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the Federal Register that would alert the public that they may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in title V programs and that EPA would respond to their allegations within specified time periods if the comments were made within 90 days of publication of the Federal Register notice.

Two individuals commented on what they believe to be deficiencies with respect to the Clark County title V program. As stated in the Federal Register notice published on October 10, 2001 (66 FR 51620) proposing to fully approve Clark County's operating permits program, EPA takes no action on those comments in today's action. Rather, EPA expects to respond by December 14, 2001 to timely public comments on programs that have obtained interim approval, and by April 1, 2002 to timely comments on fully approved programs. We will publish a notice of deficiency (NOD) when we determine that a deficiency exists, or we will notify the commenter in writing to explain our reasons for not making a finding of deficiency. In addition, we will publish a notice of availability in the Federal Register notifying the public that we have responded in writing to these comments and how the public may obtain a copy of our response. An NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that we have identified through our program oversight. Furthermore, in the future, EPA may issue an additional NOD if EPA or a citizen identifies other deficiencies.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program , to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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-300734A. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

This final rule establishes, modifies, and revokes the tolerances for residues of 4-Amino-6-(1,1-dimethylethyl)-3-(methylthio)-1,2,4-triazin-5(4H)-one, metribuzin, dichlobenil, diphenylamine, sulprofos, pendimethalin, and terbacil in or on certain specified commodities.

The tolerances revoked by this rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. These pesticides are no longer used on those specified commodities within the United States, and no one commented that there was a need for EPA to retain the tolerances to cover residues in or on imported foods. EPA has historically expressed a concern that retention of tolerances that are not necessary to cover residues in or on legally treated foods could potentially encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances for residues of pesticide chemicals for which there are no active registrations under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

Today's final rule does not revoke or modify those tolerances for which EPA received comments demonstrating a need for the tolerance to remain as currently expressed. Generally, EPA will proceed with the revocation or modification of these tolerances on the grounds discussed above only if: (i) Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained, (ii) EPA independently verifies that the tolerance is no longer needed or should be otherwise modified, or (iii) the tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

In the Federal Register of October 16, 1998 (63 FR 55565) (FRL-6035-7), EPA issued a proposed rule to establish, revise, or revoke the tolerances listed in this final rule. EPA proposed revocations pertaining to pesticides whose registrations were canceled because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily canceled all registered uses associated with the tolerance revocations for these pesticides. Also, the October 16, 1998 proposal invited public comment for consideration and for support of tolerance retention under FFDCA standards.

The following comments were received by the Agency in response to the document published on October 16, 1998:

1. Diphenylamine . A comment was received from the European Union (EU) that expressed concern with EPA's proposed actions to establish 0.01 ppm (the limit of detection) for residues of diphenylamine in milk, meat, fat, and meat byproducts (excluding liver) of cattle, goats, horses, and sheep. The EU believed that EPA's evaluation appeared to consider the limit of detection as the only acceptable limit for all the commodities listed. The EU argued that an accurate study of animal metabolism has not been carried out by EPA before taking such action.

Also, the EU wrote that the European Community did an evaluation which led to different proposed Maximum Residue Limits (MRLs) for diphenylamine about two years prior to the proposed rule. In addition, the EU believed that a clear import tolerance and pesticide policy had not been established by the Agency.

Agency response . A Reregistration Eligibility Decision (RED) for diphenylamine was approved on September 30, 1997. Through the RED process, EPA determined that the tolerances recommended in the RED document met the safety standards under FQPA. In particular, adequate data indicate that tolerances for residues in milk and meat could be increased from the current level of 0.0 ppm and established as separate tolerances set at 0.01 ppm. Both a 1996 study on edible tissues and milk from lactating dairy cows, and a 1996 study on milk and tissues from lactating goats are cited in the bibliography of the RED regarding tolerance recommendations for milk and meat, fat, and meat byproducts (excluding liver) of cattle, goats, horses, and sheep. The Agency believes that these data sufficiently support EPA's finding.

When possible, EPA seeks to harmonize U.S. tolerances with Codex MRLs, although EPA may establish a tolerance that is different. In this case, differences between Codex and U.S. tolerances on milk and meat at 0.01 ppm is justified by data. Further, no diphenylamine Codex MRLs are listed for milk or meat in the Food and Agriculture Organization of the United Nations Statistical (FAOSTAT) database for pesticide residues in food, as of the last update on September 2, 1999. Also, no diphenylamine MRLs are listed for milk or meat in the EU MRLs listed in EU's Food Safety database for pesticide residues, as of the last update on March 12, 2001.

Since the time when the EU comment on import tolerances was received, EPA published in the Federal Register on June 1, 2000 (65 FR 35069) (FRL-6559-3) an import tolerance guidance entitled “Pesticides; Guidance on Pesticide Import Tolerances and Residue Data for Imported Food; Request for Comment.” In this document, EPA solicited comments on the approach reflected in the guidance on how to obtain an import tolerance, both for establishing new import tolerances and for modifying or maintaining existing U. S. tolerances for import purposes when U.S. uses or registrations are canceled.

Therefore, EPA is establishing tolerances in 40 CFR 180.190 for diphenylamine at 0.01 ppm for milk, meat, fat, and meat byproducts, except liver of cattle, goats, horses, and sheep. Also, EPA is establishing separate tolerances at 0.1 ppm for liver of cattle, goats, horses, and sheep. In addition, EPA is establishing a tolerance at 30 ppm for “apple, wet pomace” because data from an adequate apple processing study indicate that it is needed. EPA is changing the name of the commodity tolerance “apple, preharvest or postharvest, including wraps” in 40 CFR 180.190 to “apple from preharvest or postharvest use, including use of impregnated wraps” to conform to current Agency practice.

2. Terbacil . Comment from DuPont Agricultural Products. A comment was received by the Agency from DuPont Agricultural Products agreeing with the proposed reassessment action for terbacil and the EPA Terbacil RED that the tolerance definition listed under 40 CFR 180.209(a) and (b) should be identical for all commodities, and all tolerances should be listed under one section. However, DuPont requested that the terbacil tolerance expression should be further simplified by including only the parent and metabolite A. DuPont claimed that analysis of all three minor metabolites for each commodity is not needed to assure compliance with the label directions since metabolites B and C are rarely detected. DuPont declared that the existing tolerance levels for terbacil are adequate to assure compliance with label directions, but that it would be appropriate to include the more conservative, higher levels as proposed in the October 16, 1998 document for those crops other than alfalfa forage and hay.

Agency response . The Agency believes the tolerances for terbacil must include all the metabolites. A tolerance is the maximum pesticide chemical residue allowable in or on a food from the use of a pesticide registered under FIFRA. The term “pesticide chemical residue” is defined under section 201(q)(2) of the FFDCA as “a pesticide chemical or any other substance that is present on or in the commodity or food primarily as a result of the metabolism or other degradation of a pesticide chemical.”

EPA has determined that the pesticide chemical residues in the tolerance expression for terbacil are the parent and its metabolites, labelled A, B, and C. The metabolites were included in the terbacil risk assessment as residues of toxic concern (i.e., all four chemicals contribute to the risk) and therefore, all four should be regulated in the tolerance expression. DuPont's comments regarding compliance with label directions do not offer any reason why metabolites B and C should not be regulated as pesticide chemical residues of toxic concern. The reason for the tolerance is to limit the risk, not merely to ensure compliance with label directions, even though such compliance may be an important factor in limiting the risk. The Agency will maintain the proposed tolerance expression for terbacil.

Therefore, the tolerance expressions are unified to include terbacil (3-tert-butyl-5-chloro-6-methyluracil) and its metabolites [3-tert-butyl-5-chloro-6-hydroxymethyluracil], [6-chloro-2,3-dihydro-7-hydroxymethyl 3,3-dimethyl-5H-oxazolo (3,2-a) pyrimidin-5-one], and [6-chloro-2,3-dihydro-3,3,7-trimethyl-5H-oxazolo (3,2-a) pyrimidin-5-one], calculated as terbacil. In accordance, 40 CFR 180.209, paragraphs (a)(1) and (a)(2) are combined. To reflect the combined limit of detection for terbacil and its three regulated metabolites, EPA is increasing the tolerances for (i) peaches from 0.1 to 0.2 ppm and revising the name to “peach,” (ii) blueberries from 0.1 to 0.2 ppm and revising the name to “blueberry,” and (iii) caneberries (blackberries, boysenberries, dewberries, loganberries, raspberries, and youngberries) from 0.1 to 0.2 ppm and revising the name to “caneberry.” Based upon available residue data, the Agency is increasing tolerances for (i) apples from 0.1 to 0.3 ppm and revising the name to “apple,” (ii) asparagus from 0.2 to 0.4 ppm, and (iii) sugarcane from 0.1 to 0.4 ppm.

Also, available data support the establishment of lower alfalfa tolerances. Therefore, EPA is decreasing the tolerances for “alfalfa, forage” from 5.0 to 1.0 ppm, and “alfalfa, hay” from 5.0 to 2.0 ppm. The Agency has determined that once these tolerances on alfalfa are decreased, the tolerances for residues of terbacil and its metabolites on all animal commodities could be revoked because there is no reasonable expectation of finite residues in animal commodities 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.209 for residues of terbacil and its metabolites in or on cattle, fat; cattle, mbyp; cattle, meat; goats, fat; goats, mbyp; goats, meat; hogs, fat; hogs, mbyp; hogs, meat; horses, fat; horses, mbyp; horses, meat; milk, fat; sheep, fat; sheep, mbyp; and sheep, meat.

In addition, EPA is revoking the tolerances for residues of terbacil and its metabolites in or on pears; pecans; sainfoin, forage; and sainfoin hay in 40 CFR 180.209 because no registered uses exist.

Note, a tolerance for citrus fruits appeared in the table under 180.209 in the rule of October 16, 1998 (63 FR 55565) because it existed at that time. However, that citrus fruits tolerance had been previously proposed for revocation on February 5, 1998 (63 FR 5907) (FRL-5743-9) and was later revoked in a final rule published on October 26, 1998 (63 FR 57067) (FRL-6035-6).

EPA is changing the name of the commodity tolerances “mint hay (peppermint and spearmint)” given on one line in 40 CFR 180.209 by listing the two tolerances on separate lines and revising their names to “peppermint, tops” and “spearmint, tops” to conform to current Agency practice. EPA is also revising the name “strawberries” to “strawberry.”

No comments were received by the Agency concerning the following:

3. Metribuzin . In the codification section of the proposed rule (October 16, 1998, 63 FR 55565), EPA inadvertently listed the tolerance for metribuzin on lentil in error as 0.5 instead of the correct level of 0.05 ppm. That tolerance change was an unintended typographical error. No change concerning the lentil tolerance level was proposed for metribuzin. The name change from lentils (dried) to lentil was proposed as one of the “other terminology changes.” Therefore, EPA is changing the tolerance name to “lentil,” but the tolerance level will remain at 0.05 ppm.

In the proposed rule of October 16, 1998, the tolerance for sugarcane molasses in 40 CFR 180.332 was noted to be listed incorrectly as 0.3 ppm, and was proposed to be revised to reflect the correct tolerance of 2 ppm (August 24, 1978, 43 FR 35915), along with a terminology revision to “sugarcane, molasses.” A final rule on May 24, 2000 (65 FR 33691) (FRL-6043-1) transferred the tolerance for sugarcane molasses at 2.0 ppm from 185.250 to 180.332(a), increased the existing tolerance in 40 CFR 180.332(a) for sugarcane molasses from 0.3 ppm to 2.0 ppm, and removed the duplicate entry for sugarcane molassses at 2.0 ppm created by the transfer. Therefore, no further action in this rule is required to implement the metribuzin RED regarding sugarcane molasses.

The metribuzin RED, approved on May 20, 1997, stated that the tolerance for sweet corn should be revoked because there were no registered uses. However, a registered use for sweet corn was approved in August, 1997. Therefore, the tolerance for corn, fresh (inc. sweet K + CWHR) is not revoked. EPA is revoking the tolerance in 40 CFR 180.332 for residues of metribuzin and its metabolites in or on lentils, vine hay because it is no longer considered a significant livestock feed commodity; therefore a tolerance is not necessary.

In 40 CFR 180.332, EPA is establishing tolerances for both barley, hay and wheat, hay at 7 parts per million (ppm). EPA is increasing tolerances for asparagus from 0.05 to 0.1 ppm and for soybeans from 0.1 to 0.3 ppm, and is revising the name from “soybeans ” to “soybean, seed.” The tolerance for peas, vine hay is increased from 0.05 to 4 ppm, and the named is revised to “ pea, field, hay.”

Other terminology changes are given in the regulatory text as follows: “Alfalfa, green ” to “alfalfa, forage;” “barley, milled fractions (except flour)” to “barley, pearled barley;” “carrots ” to “carrot;” “cattle, mbyp” to “cattle, meat byproducts;” “corn, fodder” to “corn, field, stover” and “corn, sweet, stover;” “corn, forage” to “corn, field, forage” and “corn, sweet, forage;” “corn, fresh (inc. sweet K+CWHR)” to “corn, sweet, kernel plus cob with husks removed;” “corn, grain (inc. popcorn)” to “corn, field, grain ” and “corn, pop, grain;” “eggs” to “egg;” “goats, fat;” to “goat, fat;” “ goats, mbyp;” to “goat, meat byproducts;” “goats, meat;” to “goat, meat;” “grass” to “grass, forage;” “hogs, fat;” to “hog, fat;“ “hogs, mbyp;” to “hog, meat byproducts;” “hogs, meat;” to “hog, meat;” “horses, fat;” to “horse, fat;” “horses, mbyp;” to “horse, meat byproducts;” “horses, meat;” to “horse, meat;” “peas” to “pea, succulent;” “peas (dried)” to “pea, dry, seed;” “peas, forage” to “pea, field, vines;” “potatoes, processed (inc. potato chips)” to “potato, processed potato waste ” and “potato, chips;” “poultry, mbyp;” to “poultry, meat byproducts;” “sainfoin” to “sainfoin, forage;” “sheep, mbyp;” to “sheep, meat byproducts;” “soybeans, forage” to “soybean, forage;” “soybeans, hay” to “soybean, hay;” “sugarcane molasses” to “sugarcane, molasses;” “tomatoes” to “tomato;” and “wheat, milled fractions (except flour)” to “wheat, bran;” “wheat, middlings;” “wheat, shorts;” and “wheat, germ.”

4. Dichlobenil . In 40 CFR 180.231, the metabolite 2,6-Dichlorobenzamide (BAM) is added to the tolerance expression of dichlobenil (2,6-dichlorobenzonitrile) and the metabolite 2,6-dichlorobenzoic acid (2,6-DCBA) is deleted from the tolerance expression. Based upon the available residue data and to reflect the combined residues of dichlobenil and BAM, tolerances for apples and pears are increased from 0.15 to 0.5 ppm, and tolerances for blackberries, cranberries, and raspberries are decreased from 0.15 to 0.10 ppm.

EPA is revoking the tolerances for residues of dichlobenil and its metabolite in or on almond hulls; avocados; citrus; figs; and mangoes in 40 CFR 180.231 because no registered uses exist. The Agency is revoking the tolerance for nuts in 40 CFR 180.231 and is establishing a tolerance for filbert at 0.1 ppm as a separate tolerance because no other tree nut uses are being supported by the registrant.

Terminology changes are given in the regulatory text as follows: “Apples” to “apple,” “blackberries” to “blackberry,” “blueberries” to “blueberry,” “cranberries” to “cranberry,” “grapes” to “grape,” “pears” to “ pear,” “raspberries” to “raspberry” and “stone fruits” to “fruit, stone, group.”

5. Pendimethalin . In 40 CFR 180.361, EPA is establishing a tolerance at 0.1 ppm for rice, straw; and is increasing the tolerance on rice grain from 0.05 to 0.1 ppm based on available field trial data and to reflect the analytical method's limit of quantitation for the combined residues of pendimethalin and its regulated metabolite. EPA also combines the tolerance for garlic, listed under § 180.361(c) “Tolerances with regional registrations,” with § 180.361(a), which lists tolerances for registrations without regional restriction, since EPA has data that support a national registration and tolerance for garlic at the same level (0.1 ppm).

EPA is revoking the tolerance in 40 CFR 180.361 for residues of pendimethalin and its metabolite in or on peanut, forage because it is no longer considered a significant livestock feed commodity; therefore a tolerance is not necessary.

Terminology changes are given in the regulatory text as follows: “beans, lima (dry, snap)” to “bean, lima, seed” and “bean, lima, succulent;” “beans, forage“ to “bean, forage ” “beans, hay” to “bean, hay;” “corn, fodder” to “corn, field, stover” and “corn, sweet, stover;” “corn, forage” to “corn, field, forage” and “corn, sweet, forage;” “corn, grain” to “corn, field, grain” and “corn, pop, grain;” “corn, fresh (including sweet, K+CWHR)” to “corn, sweet, kernel plus cob with husks removed;” “cottonseed” to “cotton, undelinted seed;” “onions, dry bulb” to “onion, dry bulb;” “peanuts” to “peanut;” “peas (except field peas)” to “pea, succulent;” “potatoes” to “potato;” “sorghum, fodder“ to “sorghum, grain, stover;” “sorghum, grain” to “sorghum, grain, grain;” “soybeans ” to “soybean, seed;” “soybeans, forage” to “soybean, forage;” “soybeans, hay” to “soybean, hay;” and “sunflower, seeds” to “sunflower, seed.”

6. Sulprofos . EPA is revoking the tolerance in 40 CFR 180.542 for residues of sulprofos and its cholinesterase-inhibiting metabolites in cottonseed oil because no registered use exists. In the proposed rule, the cottonseed oil tolerance was listed in 40 CFR 185.3000 (63 FR 55565); however, that tolerance was moved into 40 CFR 180.542 and § 185.3000 was removed (65 FR 33703, May 24, 2000) (FRL-6041-9).

EPA has issued Reregistration Eligibility Decisions (REDs) for the active ingredients listed in this final rule with the exception of sulprofos. During the reregistration process, EPA approved the registrant's request for voluntary cancellation of sulprofos registrations (61 FR 65218, December 11, 1996) (FRL-5573-6). No active registrations exist for sulprofos.

EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration process. As part of the reregistration process, EPA is required to determine whether each of the amended tolerances meets the safety standards under the Food Quality Protection Act (FQPA). The safety finding determination is found in detail in each RED for the active ingredient. RED recommendations, such as establishing or modifying tolerances, require assessment under the FQPA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in those REDs because there are no registered uses may be revoked in this document without such assessment, because the tolerances are no longer necessary. REDs propose certain tolerance actions to be implemented to meet safety findings and change commodity names and groupings in accordance with new EPA policy. Printed copies of the REDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419, telephone 1-800-490-9198; fax 513-489-8695 and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, telephone 1-800-553-6847 or 703-605-6000. Electronic copies of the RED are available on the internet at http://www.epa.gov/pesticides/reregistration/status.htm.

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

These actions become effective 90 days following publication of this final rule in the Federal Register . EPA has delayed the effectiveness of these revocations for 90 days following publication of this final rule to ensure that all affected parties receive notice of EPA's actions. Consequently, the effective date is March 5, 2002. For this final rule, tolerances that were revoked because registered uses did not exist concerned uses which have been canceled for more than a year. Therefore, commodities containing these pesticide residues should have cleared the channels of trade.

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

By law, EPA is required to reassess 66% or about 6,400 of the tolerances in existence on August 2, 1996, by August 2002. EPA is also required to assess the remaining tolerances by August, 2006. As of November 27, 2001, EPA has reassessed over 3,830 tolerances. In this document, EPA revokes 29 tolerances of which 28 were previously counted as reassessed via the RED process. Therefore, one tolerance revocation is counted here as a tolerance reassessment toward the August, 2002 review deadline of FFDCA section 408(q), as amended by FQPA in 1996.

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

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-300734A 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 February 4, 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. Objection/hearing fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IV.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-300734A, 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, modifies, and revokes tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions; i.e., establishment and modification of a tolerance, and tolerance revocation for which extraordinary circumstances do not exist, from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). 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 other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account these analyses, and available information concerning the pesticides listed in this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities. Specifically, as per the 1997 notice, EPA has reviewed its available data on imports and foreign pesticide usage and concludes that there is a reasonable international supply of food not treated with canceled pesticides. Furthermore, the Agency knows of no extraordinary circumstances that exist as to the present establishments, modifications, or revocations that would change EPA's previous analyses.

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).

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-178, adopted November 14, 2001, and released November 23, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 44512th Street, SW, Room CY-A257, Washington, DC, 20554. The document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202 863-2893. facsimile 202 863-2898, or via e-mail qualexint@aol.com.

This Federal Register document is also accessible via the internet at the website of the Office of the Federal Register: http://www.access.gpo.gov/su-docs/aces/aces140.html .

The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Annual groundfish specifications and management measures are initially developed by the Pacific Fishery Management Council (Council) and are implemented by NMFS. The specifications and management measures for the current fishing year (January 1 through December 31, 2001) were published at 66 FR 2338, January 11, 2001, as amended at 66 FR 10208 (February 14, 2001), at 66 FR 18409 (April 9, 2001), at 66 FR 22467 (May 4, 2001), at 66 FR 28676 (May 24, 2001), at 66 FR 35388 (July 5, 2001), at 66 FR 38162 (July 23, 2001), at 66 FR 50851 (October 5, 2001), at 66 FR 54721 (October 30, 2001), and at 66 FR 55599 (November 2, 2001).

Among the more than 80 species managed under the FMP are Dover sole, thornyheads, sablefish, and flatfish (flatfish is used in this document to mean all flatfish listed at 50 CFR 660.302, except Dover sole). In the trawl fishery, Dover sole is targeted along with thornyheads and sablefish. Because these species are targeted together with trawl gear, they are managed as part of a multi-species complex consisting of Dover sole, thornyheads (shortspine and longspine), and sablefish, known as the DTS complex. In addition to the directed fishery for the DTS complex, Dover sole is also caught incidentally in other flatfish trawl fisheries on the continental shelf and slope.

Through August 2001, the best available information from PacFIN indicated that the DTS complex was approaching the commercial landed catch OY for 3 of 4 species, Dover sole (92 percent), trawl-caught sablefish (89 percent) and shortspine thornyhead (79.7 percent). Based on recommendations from the Council’s September meeting, NMFS closed the limited entry trawl directed fishery for the DTS complex, including Dover sole, from October 2, 2001, through the effective date for the 2002 specifications and management measures in order to avoid exceeding the target landed catch OY of Dover sole, sablefish and shortspine thornyhead (66 FR 50851, October 5, 2001). However, other flatfish trawl fisheries, such as Petrale sole and arrowtooth flounder, have remained open since September. Thus, while it has been illegal to land Dover sole and any DTS complex species caught with trawl gear since October 2, 2001, Dover sole is still caught as bycatch in the other flatfish fisheries that have remained open and is assumed to be discarded. This discard is accounted for in calculating total catch by applying a discard rate recommended by the Council based on a trawl logbook analysis of the incidental catch of Dover sole in other flatfish fisheries.

PacFIN data have been updated since the September Council meeting. The best available information indicates that 93 percent of the Dover sole allocation had been taken through October 31, 2001, leaving 515 mt of the Dover sole OY available for harvest. In order to account for the Dover sole caught incidentally in the winter flatfish fisheries, the Council recommended at its October 29 through November 2, 2001, meeting in Millbrae, CA, to allow a 1,000 lb (454 kg)/trip limit of Dover sole in December for the limited entry trawl fleet. This action would allow vessels to retain Dover sole that would otherwise have been incidentally harvested and discarded. Allowing the incidental retention of Dover sole in the flatfish fisheries is not expected to increase incidental interception of sablefish and shortspine thornyhead because flatfish trawling requires different fishing techniques and occurs in different fishing grounds than in the directed DTS trawl fisheries. Taking into account the number of vessels and trips per vessel by other flatfish fisheries over the past 3 years during the month of December, opening up this trip limit for incidentally caught Dover sole is expected to add another 200 to 300 mt to the landed catch OY, well within the approximately 500 mt of remaining OY.

NMFS concurs with the Council's recommendation and hereby announces a trip limit for the limited entry trawl fishery coastwide of 1,000 lb (454 kg)/trip of Dover sole from December 1, 2001, through the effective date of the 2002 specifications and management measures for the Pacific Coast groundfish fishery. This trip limit is intended to allow for Dover sole caught incidentally in other flatfish trawl fisheries.

Accordingly, at 66 FR 2338, January 11, 2001, as subsequently amended, in Section IV, under B. Limited Entry Fishery, Table 3 is revised to read as follows: