On October 26, 2000, OPM published interim regulations at 65 FR 64133 to replace references to the repealed Job Training Partnership Act (JTPA) with references to its successor statute, the Workforce Investment Act (WIA) of 1998. OPM is making the interim regulations final without further revision.

The JTPA, Public Law 97-300, October 12, 1982, as amended, required the States to provide employment assistance programs to dislocated workers and others as defined in the Act. Since 1995, through OPM regulations published in §§ 330.405, 351.803, and 351.807 of title 5, Code of Federal Regulations (CFR), agencies have been required to give JTPA program information to employees in their specific reduction in force notices.

The JTPA was repealed effective July 1, 2000. States now provide placement assistance programs under the WIA, Public Law 105-220, August 7, 1998. The Omnibus Consolidated and Emergency Supplemental Appropriations Act, Public Law 105-277, section 405, October 21, 1998, amended the reduction in force statute at 5 U.S.C. 3502(d) to reflect this change in the controlling statute.

The interim regulations were issued solely to replace references to the repealed JTPA with references to its successor statute, the WIA. No other wording was changed.

The interim regulations were effective November 27, 2000. Interested parties could submit written comments to OPM concerning the regulations during the 60-day period following publication.

OPM did not receive any comments on the interim regulations.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

On June 4, 2001, OPM published interim regulations removing the sunset date from the Career Transition Assistance Plan (CTAP) and Interagency Career Transition Assistance Plan (ICTAP). These regulations also permanently eliminated the Interagency Placement Program (IPP), deleting references to the IPP in parts 332, 351 and 353 and replacing them with ICTAP where appropriate.

Four Federal agencies commented on these regulations. All four agreed with the regulations as published, supporting OPM's decision to permanently replace the IPP with CTAP and ICTAP and to eliminate the agency reporting requirements. One agency suggested that we consider redesignating CTAP as ACTAP (Agency Career Transition Assistance Plan) to reduce confusion between this agency placement program and the ICTAP, the interagency program. We believe the best way to implement such a change would be in conjunction with future proposed regulations.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees.

On October 20, 2000, OPM published an interim regulation at 65 FR 62991 that clarifies OPM's longstanding policy on the procedure that an agency uses to determine a released employee's potential right to “Retreat” to another position in a reduction in force.

The interim regulation stated that an agency determines the grade or grade-interval range of a released employee's retreat rights solely on the basis of the official position of record held by the employee on the effective date of the reduction in force. The regulation also stated that an agency does not consider the grade or grade-interval range of the position to which the employee may have a retreat right.

The interim regulation was effective upon publication in the Federal Register . Interested parties could submit written comments to OPM concerning the regulation in the 60 day period following publication.

OPM did not receive any comments on the regulation.

The interim regulation OPM published at 65 FR 62991 is published as a final regulation without further revision.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees.

This regulation has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE172.” The postcard will be date stamped and returned to the commenter.

On February 6, 2001, GROB-WERKE, Burkhurt Grob e.k., Unternehmensbereich Luft-und Raumfahrt, Lettenbachstrasse 9, 86874, Tussenhausen-Mattsies, Germany, made an application to the FAA for a type certificate for the G120A airplane. The proposed modification incorporates a novel or unusual design feature, such as electronic attitude direction indicator that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.17, GROB-WERKE must show that the G120A airplane meets the following provisions, or the applicable regulations in effect on the date of application, 14 CFR part 23 at Amendment 23-54.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions are normally issued in accordance with § 11.19 as required by and become a part of the type certification basis in accordance with § 21.17 (a)(2).

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

GROB-WERKE plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include an electronic attitude direction indicator, which is susceptible to the HIRF environment, which was not envisaged by the existing regulations for this type of airplane.

Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. In addition, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows: The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts rms per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to the G120A airplane. Should GROB-WERKE apply at a later date for a design approval to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the specified airplane model(s). It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

Federal Register Document 99-32347, Airspace Docket No. 99-ASO-19, published on December 14, 1999, (64 FR 69631), amends Class D airspace at Eglin AFB, FL. Errors were discovered in the legal description, describing the Class D airspace area. One word, “of” has been changed to “to”, and the word “east” has been inserted to more clearly describe the airspace boundaries. These actions correct the errors.

Designations for Class D airspace areas extending upward from the surface of the earth are published in Paragraph 5000 of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.

As published, the final rule contains errors which incorrectly describe the geographical boundaries of the Class D airspace area. Accordingly, pursuant to the authority delegated to me, the legal description for the Class D airspace area at Eglin AFB, FL, incorporated by reference at § 71.1, 14 CFR 71.1, and published in the Federal Register on December 14, 1999, (64 FR 69631), is corrected by making the following correcting amendment.

In consideration of the foregoing, the Federal Aviation Administration corrects the adopted amendment, 14 CFR part 71, by making the following correcting amendment:

Section 31 of the Exchange Act  1 requires national securities exchanges and national securities associations to pay fees and assessments to the Commission based on sales of or transactions in certain securities. Specifically, a national securities exchange is required to pay to the Commission fees based on the aggregate dollar amount of sales of certain securities transacted on that exchange, 2 and a national securities association is required to pay to the Commission fees based on the aggregate dollar amount of sales of certain securities transacted by or through any member of the association otherwise than on a national securities exchange. 3 In addition, an exchange or association is required to pay to the Commission an assessment for each round turn transaction on a security future. 4 Section 31(f) of the Exchange Act  5 provides that “[t]he Commission, by rule, may exempt any sale of securities or any class of sales of securities from any fee or assessment imposed by [Section 31], if the Commission finds that such exemption is consistent with the public interest, the equal regulation of markets and brokers and dealers, and the development of a national market system.”

On January 16, 2002, President Bush signed into law the Investor and Capital Markets Fee Relief Act (“Fee Relief Act”)  6 which, among other things, amends Section 31 to provide that “options on securities indexes (excluding a narrow-based security index)” are exempt from the fee requirements of Section 31. Thus, as provided by statute, national securities exchanges and national securities associations are not required to pay to the Commission fees on sales of options on security indexes that are not narrow-based security indexes  7 ( i.e., are “broad-based security indexes”). The exclusion of sales of options on broad-based indexes from Section 31 fees is consistent with the treatment of futures on broad-based indexes, which compete with options on broad-based indexes and are not subject to assessments under Section 31.

The Commission today is amending Rule 31-1 under the Exchange Act  8 by adding new paragraphs (f) and (g) to exempt options and futures, respectively, on narrow-based security indexes from Section 31. The Commission also is adopting conforming amendments to the preliminary note in Rule 31-1.

The Exchange Act defines a narrow-based security index to be an index that has any one of the following four characteristics: (1) It has nine or fewer component securities; (2) any one of its component securities comprises more than 30 percent of its weighting; (3) any group of five of its component securities together comprise more than 60 percent of its weighting; or (4) the lowest weighted component securities comprising, in the aggregate, 25 percent of the index's weighting have an aggregate dollar value of average daily trading volume of less than $50 million (or in the case of an index with 15 or more component securities, $30 million). 9 This definition was added to the Exchange Act by the Commodity Futures Modernization Act of 2000 which, among other things, authorized the trading of futures on single securities and on narrow-based security indexes.

Trading of futures on narrow-based security indexes is subject to joint regulation by the Commission and the Commodity Futures Trading Commission (“CFTC”), whereas trading of futures on broad-based security indexes is subject to the sole jurisdiction of the CFTC. To ensure that trading of an index future is not subject to one regulatory framework one instant and another regulatory framework the next instant, an index is excluded from the definition of “narrow-based security index” if: (1) a future on such index traded on a CFTC-regulated market for at least 30 days as a future on a broad-based security index; and (2) such index has not had the above characteristics of a narrow-based security index for more than 45 business days over three calendar months. 10 This exclusion, in effect, creates a tolerance period that permits trading in futures on broad-based security indexes to continue to be regulated exclusively by the CFTC if the index becomes narrow-based for 45 or fewer business days in a three-month period. 11

This statutory tolerance period applies only when a future is trading on an index. When a future is not trading on an index, the index can switch continuously between a broad-based security index and a narrow-based security index. Thus, when a future is not trading on an index, an option on that index could be an option on a narrow-based security index one instant—and thus be subject to Section 31 fees—and be an option on a broad-based security index—and thus be exempt from Section 31 fees—just an instant later. Exchanges and associations must, therefore, continuously monitor the status of an index underlying an option and pay Section 31 fees to the Commission only for sales executed when the underlying index was narrow-based.

Currently, the trading volume of options on narrow-based security indexes, and thus the amount of Section 31 fees levied on such trading, is insignificant. The fees paid by the exchanges to the Commission in 2001 for all sales of options on indexes that were, or in the near future might become, narrow-based security indexes was below $35,000. 12 In light of the currently low dollar volume of sales of options on narrow-based security indexes and the resources that exchanges and associations must devote to monitoring the narrow-based status of the underlying indexes, the Commission believes that it is consistent with the public interest, the equal regulation of markets and brokers and dealers, and the development of a national market system to exempt options on narrow-based security indexes from the fee requirements of Section 31.

To the extent that the dollar volume of sales of options on narrow-based security indexes increases, the Commission may reevaluate its decision today to exempt such products from Section 31 fees. 13

In addition, the Commission is exempting futures on narrow-based security indexes from the fee assessment requirements of Section 31. The Commission believes that such an exemption is necessary and appropriate to maintain a level competitive playing field between futures on narrow-based security indexes and options on narrow-based security indexes that compete with one another. The Commission notes that one of the reasons that Congress relieved exchanges and associations from the requirement to pay Section 31 fees on options on security indexes (excluding narrow-based security indexes) is that futures on such indexes are not subject to Section 31 assessments. Similarly, the Commission believes that an exemption for futures on narrow-based security indexes is consistent with the public interest, the equal regulation of markets and brokers and dealers, and the development of a national market system. As with the exemption for options on narrow-based security indexes, the Commission may reevaluate its decision today to exempt futures on narrow-based security indexes from Section 31 assessments after trading commences in these products.

Section 3(f) of the Exchange Act  14 requires the Commission, whenever it engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider whether the action will promote efficiency, competition, and capital formation. In addition, Section 23(a)(2) of the Exchange Act  15 requires the Commission, when promulgating rules under the Exchange Act, to consider the impact any such rules would have on competition. Section 23(a)(2) further provides that the Commission may not adopt a rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.

The Commission has considered the effect of the amendments to Rule 31-1 on efficiency, competition, and capital formation. The Commission does not believe that these amendments will impose any burden on competition. To the contrary, the Commission believes that the amendments will promote a level playing field between options and futures on narrow-based security indexes.

The Commission also has considered whether exempting options and futures on narrow-based security indexes from Section 31 might divert trading activity from securities that are not exempt from Section 31 to these options and futures that are exempt. However, the Commission views this prospect as highly unlikely. Options and futures on single stocks and options and futures on narrow-based security indexes are, in practice, very imperfect substitutes for each other. 16 Given this imperfection, the very small per-transaction Section 31 fee on transactions in the single-stock options and futures would not likely be the controlling factor in a market participant's decision to purchase index options or futures rather than options or futures on the index's component securities.

Section 553(b) of the Administrative Procedure Act (“APA”)  17 generally requires an agency to publish notice of a proposed rule making in the Federal Register . This requirement does not apply, however, if the agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  18

Although President Bush signed the Fee Relief Act into law on January 16, 2002, it became effective retroactively to December 28, 2001. 19 Thus, in complying with the requirements of Section 31, national securities exchanges and national securities associations currently must continuously monitor whether an index underlying an index option is narrow-based or broad-based. The Commission finds that it is unnecessary and contrary to the public interest to continue to require exchanges and associations to incur this burden and assess the required fees during a notice and comment period when the amount of such fees would be an infinitesimal portion of the total fees collected and paid to the Commission under Section 31. Therefore, the Commission finds good cause to waive the APA's notice and comment provisions with respect to the amendments to Rule 31-1.

The APA also generally requires that an agency publish an adopted rule in the Federal Register 30 days before it becomes effective. 20 However, this requirement does not apply if the rule grants or recognizes an exemption or relieves a restriction  21 or if the agency finds good cause not to delay the effective date. 22 The Commission finds that the amendments to Rule 31-1 meet both criteria. The amendments exempt two classes of securities—options on narrow-based security indexes and futures on narrow-based security indexes—from the fee assessments of Section 31. Moreover, as discussed above, making the rule amendments effective immediately will spare exchanges and associations the burden and expense of monitoring indexes and assessing the required fees for the period during which the amendments are not effective. Therefore, the Commission finds good cause to issue the rule amendments without a delayed effective date.

The Regulatory Flexibility Act  23 is not applicable to the promulgation of the rule amendments. The flexibility analysis requirement of the Regulatory Flexibility Act applies only if the Commission would be required by the APA to publish general notice of the proposed rulemaking. 24 As discussed above, the Commission has determined that the APA does not require it to solicit public comment in this case.

The Paperwork Reduction Act  25 is not applicable to the promulgation of the amendments because they do not impose any collection of information requirements that would require the approval of the Office of Management and Budget.

Eliminating Section 31 fees for transactions in options or futures on narrow-based indexes theoretically could result in slightly higher fees on transactions in other securities that do not benefit from a Section 31 exemption. The Exchange Act, as amended by the Fee Relief Act, requires the Commission to set rates for Section 31 fees so that such rates are reasonably likely to produce aggregate fee collections that equal amounts prescribed by the Fee Relief Act. 26 Thus, although the Commission may exempt certain securities from Section 31, it cannot reduce the total amount of fees that it is required to collect under Section 31. An exemption granted to certain securities could, therefore, result in a higher rate paid on transactions in the remaining, non-exempted securities. However, because the fees collected on trades in options on narrow-based security indexes are very small relative to the overall fees collected on non-exempt securities transactions in the United States, 27 the Commission concludes that the amendments to Rule 31-1 adopted today will have a negligible effect, if any, on the fees paid on these other securities transactions. 28 Furthermore, the Commission believes that, although futures on narrow-based security indexes have not yet begun trading, the dollar volume of trading in these products will be very small for the foreseeable future. Therefore, the Commission also believes that an exemption for futures on narrow-based security indexes will have a negligible effect, if any, on the fees paid on other securities transactions.

The benefits of the amendments to Rule 31-1 adopted today will equal the costs saved: (1) By certain national securities exchanges from not having to monitor the indexes underlying options for purposes of Section 31; (2) by certain national securities exchanges from no longer having to collect Section 31 fees from market participants for transactions in options on narrow-based security indexes; and (3) by market participants who effect transactions in options on narrow-based security indexes and who will no longer have to pay Section 31 fees on such transactions.

With the adoption of the amendments to Rule 31-1, all index options and index futures—whether based on narrow-based or broad-based indexes—are now exempt from Section 31 fees. The Commission believes that three national securities exchanges will derive certain benefits from not having to monitor whether an index that underlies an option is narrow-based or broad-based for purposes of Section 31.

In August 2001, the Commission adopted a rule that established a methodology for calculating the market value of a narrow-based security index (“Index Calculation Rule”). 29 In adopting the Index Calculation Rule, the Commission estimated the costs that would be imposed on national securities exchanges, designated contract markets, derivatives transaction execution facilities, and foreign boards of trade to calculate the market value of security indexes in accordance with the rule. As noted above, the Fee Relief Act excluded from Section 31 options on broad-based security indexes but not options on narrow-based security indexes. Thus, when the Fee Relief Act became effective retroactively to December 28, 2001, three additional national securities exchanges  30 were required adhere to the Index Calculation Rule to ascertain whether the indexes underlying their option products were narrow-based or broad-based, for purposes of paying Section 31 fees only on the correct index options. The Commission believes that one of the benefits of the rule amendments adopted today will be the elimination of the monitoring costs for these three exchanges.

In the adopting release for the Index Calculation Rule, the Commission—upon a suggestion made by one of the commenters—assumed that two full-time staff persons, one supervisory and the other clerical, would be required to apply the new rule. The Commission estimated the total annual cost of employing one clerical staff person would be approximately $57,600, and that the total annual cost of employing a supervisory staff person would be approximately $180,000. The Commission concluded, therefore, that the total cost to each affected exchange to engage the staff necessary to comply with the Index Calculation Rule would be $237,600 annually. 31 Further, the Commission anticipated that there would be systems implementation costs associated with the Index Calculation Rule. The Commission estimated that each affected exchange would incur a one-time system installation fee of $300 and additional systems costs of $25,800 annually. 32

The Commission believes that a Section 31 exemption for transactions in options on narrow-based security indexes will relieve three national securities exchanges of the compliance costs associated with the Index Calculation Rule. These exchanges will no longer incur the costs of monitoring indexes in a manner consistent with that rule for purposes of paying Section 31 fees, which costs were estimated by the Commission in the adopting release. Thus, the Commission believes that each of the three exchanges will avoid a one-time system installation fee of $300; additional systems costs of $25,800 annually; and staffing costs of $237,600 annually.

A futures market would derive no corresponding benefit from a Section 31 exemption for futures on narrow-based security indexes because the futures market will still be required to monitor the indexes underlying its futures products, in a manner prescribed by the Index Calculation Rule, to ensure compliance with the appropriate regulatory framework.

Furthermore, the Commission believes that three national securities exchanges will derive a small benefit from not having to collect and pay to the Commission Section 31 fees on options on narrow-based security indexes. However, the Commission believes that the collection and payment of Section 31 fees for options on narrow-based security indexes required only minor configurations to the existing systems of the exchanges, and that discontinuing such collection and payment will yield only very small cost savings to these exchanges.

The Commission does not believe that the futures markets will derive any corresponding benefit from a Section 31 exemption on transactions in futures on narrow-based security indexes. Currently, futures on narrow-based security indexes are not traded on any U.S. futures market. Furthermore, the Commission does not believe that these markets have current plans to trade such products in the near future. Therefore, because the futures markets would not in any case have had to devote resources to the collection and payment of Section 31 fees on transactions in futures on narrow-based security indexes, the Commission does not believe that the exemption granted today for such futures would create any benefits for the futures markets. The Commission believes, nevertheless, that such an exemption is necessary to establish a level playing field between options and futures on narrow-based security indexes at such time as these futures may be traded.

One benefit of the amendments to Section 31 adopted today is that market participants who effect transactions in options or futures on narrow-based security indexes will not have to pay Section 31 fees on such transactions. However, as noted above, the Commission acknowledges that this benefit is offset by the increase in the rate of Section 31 fees that must be paid by market participants on transactions in other, non-exempted securities.

The amendments to Rule 31-1 under the Exchange Act are being adopted pursuant to 15 U.S.C. 78a et seq. , particularly Sections 23(a) and 31 of the Exchange Act.

The final regulations that are the subject of this correction are under section 1301 of the Internal Revenue Code.

As published, the final regulations contain an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the final regulations (TD 8972), that were the subject of FR Doc. 02-183, is corrected as follows:

In 30 CFR parts 724 and 846, 0SM has established procedures for the assessment of individual civil penalties against a corporate director, officer, or agent of a corporate permittee who knowingly and willfully authorized, ordered, or carried out a violation or a failure or refusal to comply. Included in the procedures are provisions allowing the individual to appeal a proposed individual civil penalty assessment to OHA which is part of the Department of the Interior. OHA consists of a headquarters office, located in Arlington, Virginia, and nine field offices located throughout the country. Since 1970, the headquarters office has been located at 4015 Wilson Boulevard, and that address is included in one section each within 30 CFR parts 724 and 846.

Effective February 11, 2002, the OHA headquarters office is being relocated to 801 North Quincy Street, Arlington, Virginia. In anticipation of that move, OSM is revising its administrative appeals regulations to reflect OHA's new street address.

This final rule has been issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 553) provides an exception to the notice and comment procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary or contrary to the public interest. OSM has determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule because the rule merely changes an address contained in the regulations and does not impose any new OSM regulatory requirements. These same reasons also provide OSM with good cause under 5 U.S.C. 553(d)(3) of the APA to have the regulation become effective on a date that is less than 30 days after the date of publication in the Federal Register .

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

a. The change of address will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

b. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

c. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

d. This rule does not raise novel legal or policy issues.

This rule is not considered a significant energy action under Executive Order 13211. The change of address will not have a significant affect on the supply, distribution, or use of energy.

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). As previously stated, the change of address will not have an adverse economic impact. Further, the rule produces no adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States enterprises to compete with foreign-based enterprises in domestic or export markets.

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

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

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

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

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, Tribal, or local governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1534) is not required.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12612, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment for the reasons discussed above.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act to the Office of Management and Budget is not required.

OSM has reviewed this rule and determined that it is categorically excluded from the National Environmental Policy Act process in accordance with the Departmental Manual 516 DM 2, Appendix 1.10. (Categorical Exclusion for policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature).

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alabama program on May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the May 20, 1982, Federal Register (47 FR 22062). You can find later actions on the Alabama program at 30 CFR 901.15 and 901.16.

By letter dated August 28, 2001 (Administrative Record No. AL-0647), Alabama sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Alabama sent the amendment in response to our letter dated August 23, 2000 (Administrative Record No. AL-0644), that we sent to Alabama under 30 CFR 732.17(c).

We announced receipt of the proposed amendment in the October 18, 2001, Federal Register (66 FR 52879). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on November 19, 2001. Because no one requested a public hearing or meeting, we did not hold one. We did not receive any comments.

During our review of the amendment, we identified concerns about a number of editorial inconsistencies, cross-reference errors, and wording ambiguities. We notified Alabama of these concerns by letter dated December 4, 2001 (Administrative Record No. AL-0652). However, because none of these concerns were substantive in nature, we are proceeding with this final rule.

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are our findings concerning the amendment to the Alabama program.

Any revisions that we do not discuss below concern minor wording changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

The State rules listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal regulations. Differences between the State rules and the Federal regulations are minor.

Because the above State rules have the same meaning as the corresponding Federal regulations, we find that they are no less effective than the Federal regulations.

Alabama proposes to add a new Rule 880-X-7B-.08 to describe the procedures applicants for surface coal mining permits and the regulatory authority must follow when an applicant intends to claim the exception provided in Rule 880-X-7B-.06(b) to conduct surface coal mining operations on Federal lands within a national forest. Specifically, paragraph (a) provides that an applicant must request the Alabama Surface Mining Commission (ASMC) to obtain the Secretarial findings required by Rule 880-X-7B-.06. Paragraph (b) allows an applicant to submit this request to the ASMC before preparing and submitting an application for a permit or permit revision, and describes what the request must contain. Finally, paragraph (c) provides that when a proposed surface coal mining operation or proposed permit revision includes Federal lands within a national forest, the regulatory authority may not issue a permit or approve a permit revision until after the Secretary of the Interior makes the findings required in Rule 880-X-7B-.6(b).

We find that the provisions of this section are substantively identical to those in the counterpart Federal regulation at 30 CFR 761.13, with one exception. The Federal regulation at 30 CFR 761.13 requires applicants to submit their requests for the Secretarial findings required by 30 CFR 761.11(b) directly to OSM. Under Alabama's rule, applicants must submit their request to the ASMC. We interpret Alabama's provision to mean that the ASMC will forward such requests to OSM so that the necessary Secretarial findings can be obtained. Thus, Alabama's provision merely adds an additional responsibility for the regulatory authority. It does not affect the essential provisions of the rule. Therefore, we find that 880-X-7B-.08 is no less effective than the Federal regulation at 30 CFR 761.13, and we are approving it.

We asked for public comments on the amendment, but did not receive any.

On September 18, 2001, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Alabama program (Administrative Record No. AL-0648). The Fish and Wildlife Service (FWS) responded on October 15, 2001 (Administrative Record No. AL-0650), and stated that it had no objection to the proposed revisions and additions. The Mine Safety and Health Administration (MSHA) also responded on October 18, 2001 (Administrative Record No. AL-0651), and stated that it did not have any comments.

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

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. AL-0648). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On September 18, 2001, we requested comments on Alabama's amendment (Administrative Record No. AL-0648), but neither responded to our request.

Based on the above findings, we approve the amendment Alabama sent to us on August 28, 2001.

To implement this decision, we are amending the Federal regulations at 30 CFR part 901, which codify decisions concerning the Alabama program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that a State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The taking implications assessment for the Federal valid existing rights rule appears in Part XXIX.E. of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

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

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

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

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

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

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

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

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act* * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the May 18, 1982, Federal Register (47 FR 21404). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.12, 917.13, 917.15, 917.16 and 917.17.

By letter dated December 22, 1998 (Administrative Record No. KY-1449), the Kentucky Department of Surface Mining Reclamation Enforcement (Kentucky) sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Kentucky sent the amendment in response to a required program amendment at 30 CFR 732.17(b) and to include the changes made at its own initiative. The amendment, at 405 KAR 7:097, authorizes the Natural Resources and Environmental Protection Cabinet (Cabinet) to allow a permittee, person, or operator (hereinafter collectively called the in-kind permittee) to perform in-kind reclamation, environmental rehabilitation, or similar action to correct environmental pollution—instead of making cash payment of a civil penalty assessed under KRS 350.990(11).

We announced receipt of the proposed amendment in the January 25, 1999, Federal Register (64 FR 3670). The public comment period ended on February 24, 1999. Kentucky made changes to the original submission. On April 9, 1999, a Statement of Consideration and amended regulations were filed with the Kentucky Legislative Research Committee (Administrative Record No. KY-1458). By letter dated June 10, 1999 (Administrative Record No. KY-1461), Kentucky submitted the final version of the proposed amendment to OSM. A new comment period was opened in the July 16, 1999, Federal Register (64 FR 38391) and closed on August 2, 1999. In both Federal Register notices, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. We received comments from an environmental group and a mining company.

During our review of this amendment, we identified several issues requiring clarification. A list of questions to Kentucky and Kentucky's responses are provided in an OSM memorandum, dated November 20, 2000, (Administrative Record No. KY-1507). We requested further clarification on one of the issues by letter dated February 23, 2001, (Administrative Record No. KY-1504). Kentucky responded in a letter dated April 2, 2001 (Administrative Record No. KY-1510).

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

The submittal of this proposed amendment implements House Bill 839 passed by the Kentucky 1986 General Assembly. OSM's approval of the Kentucky statute required Kentucky, prior to implementation, to submit to OSM for its approval proposed regulations to implement House Bill 839. This was codified at 30 CFR 917.16(c)(3). Therefore, we are removing the required amendment at 30 CFR 917.16(c)(3).

Kentucky proposes to authorize the Cabinet to allow an in-kind permittee to perform in-kind reclamation, environmental rehabilitation, or similar action to correct environmental pollution (hereinafter collectively called in-kind reclamation or in-kind work)—instead of making cash payment of a civil penalty assessed under KRS 350.990. This regulation also establishes criteria and procedures to implement KRS 350.990(11). A written request must be filed to perform in-kind work. If authorized, the performer of the work must enter into a binding Civil Penalty Reclamation Agreement (Agreement) with the Cabinet for work selected by the Cabinet. No fees are required for the written request or the Agreement. Those who enter into an Agreement: must obtain legal right of entry to the work site; must maintain liability insurance coverage; will, in some cases, be required to obtain a performance bond; and must perform the work activities specified in the Agreement. If the in-kind work is not completed according to the Agreement, the full amount of the assessed civil penalty must be paid. Certain proposed in-kind permittees, civil penalties, and sites are ineligible for in-kind activities. Certain kinds of activities and costs are not authorized.

There are no corresponding Federal regulations that establish specific requirements applicable to State regulatory programs that provide for in-kind reclamation. In a January 29, 1987, letter to Kentucky and other State regulatory authorities, OSM established minimum criteria for approval of State program amendments concerning in-kind reclamation (Administrative Record No. KY-1508). To be approved for in-kind reclamation, a State program amendment must:

1. Identify categories of sites that qualify for reclamation under the program amendment;

2. Specify the criteria and procedures for determining the dollar value of reclamation work to be performed;

3. Contain a plan for evaluating the performance of the reclamation work;

4. Contain timeframes for completion of the reclamation work; and

5. Specify the recourse available to the State regulatory authority should the reclamation work not meet established standards or not be completed.

Section 1 of the proposed amendment establishes the applicability and general provisions of in-kind reclamation. An in-kind permittee may perform in-kind reclamation in lieu of cash payment of one or more civil penalties if the aggregate amount of the penalties is $2,500 or more. The in-kind reclamation will be authorized under a legally binding Agreement. The in-kind permittee will be held responsible for obtaining a legal right of entry to the activity site and liability insurance coverage. The amendment requires that the liability-insurance policy remain in force during the course of the Agreement. Upon the incapacity of the insurer to continue coverage, the in-kind permittee is required to promptly notify the Cabinet. The Cabinet will give the in-kind permittee up to 90 days to replace the coverage, after which the in-kind reclamation must cease. The Cabinet may then terminate the Agreement. By a letter dated April 2, 2001, Kentucky stated it will exercise its discretion as to how rapidly to terminate the Agreement in view of all the facts at hand such as: the likelihood that the in-kind permittee will obtain replacement insurance in a short time and then expeditiously complete the in-kind reclamation; the amount of work uncompleted; and the severity of environmental problems at the site. The State noted that absent convincing evidence of a good faith effort to obtain replacement insurance and evidence of probable success in timely obtaining it, Kentucky will move quickly to terminate the Agreement, within two weeks and almost certainly 30 days of the cessation of the in-kind reclamation work (Administrative Record No. KY-1510).

Section 1 states that the in-kind permittee is required to provide a performance bond for in-kind reclamation of a mine site. In a memorandum dated November 20, 2001, Kentucky stated that the term “mine site” is used to differentiate between a site that was disturbed by mining (either coal or non-coal) and a site affected by some other type of environmental problem (trash dumps, straight pipes, brine from gas wells, etc.). The term is not meant to represent or replace any terms formally used in SMCRA (Administrative Record No. KY-1507).

For in-kind reclamation of lands other than mine sites (non-mine sites), the Cabinet may require a performance bond if it determines that the authorized activities could create a risk of environmental harm. This bond would be in addition to any bond required by another Federal, State, or local law. Kentucky stated that because the activities under this administrative regulation are not surface coal mining and reclamation operations, as defined by SMCRA, the bond does not have to meet the provisions of 405 KAR Chapter 10. However, it noted that bonds that do meet these provisions would be acceptable to the Cabinet.

Finally, Kentucky said that because the activities are not “surface coal mining and reclamation operations,” the in-kind reclamation would be subject to standards delineated in the Agreement, and would not be subject to Title V standards under SMCRA. We agree that in-kind reclamation of the sites described in the Kentucky amendment would not constitute surface coal mining and reclamation operations therefore, these sites would not be subject to the permitting or bonding requirements under Title V of SMCRA.

As we stated in the April 5, 1989, rulemaking (54 FR 13814), no permit is required “when reclamation activities are conducted where no coal extraction or other activities described in the definition of ‘surface coal mining operations’ at section 701(28) of SMCRA are taking place.” We further stated that section 506(a) of SMCRA only requires a permit for surface coal mining operations as “defined in section 701(28), not the additional reclamation activities specified in the definition of surface coal mining and reclamation operations defined in section 701(27) [of SMCRA].” Id. at 13816.

At 405 KAR 7:097, Section 1(9), the Kentucky amendment prohibits the removal of coal in connection with any in-kind reclamation. Section 1(10) of the amendment specifies that authorized activities include only “on-ground activities that directly result in reclamation, environmental rehabilitation, or correction of environmental pollution.” Therefore, the amendment does not authorize coal extraction or any of the other activities described in the definition of “surface coal mining operations” at section 701(28) of SMCRA. The reclamation obligation cited in the definition of “surface coal mining and reclamation operations” is an integral part of the surface coal mining operations and applies to entities mining coal. “The right to mine carries with it the obligation to restore the land after mining has ceased.” See 54 FR 13814 (April 5, 1989). Even an operator mining without a permit “incurs the obligation to reclaim.” See 54 Id. at 13821. Hence, an in-kind permittee under the Kentucky amendment would not be subject to the permitting, bonding requirements or reclamation standards of Title V of SMCRA.

Section 1 lists certain limitations with respect to the in-kind reclamation program. Some of these include the following:

• As previously stated, coal removal in connection with the authorized reclamation activities is prohibited;

• Educational, promotional, training, and other activities that may indirectly affect the environment is prohibited;

• In-kind reclamation activities that do not exceed in estimated cost the assessed amount of the civil penalty will not be authorized; and

• Crediting of costs incurred under the Agreement in excess of the civil penalty amount to satisfy penalties not covered by the Agreement will not be permitted.

Subsection 1 (13) specifies that the Kentucky Division of Abandoned Mine Lands (AML) shall determine the estimate of the cost of the in-kind reclamation activities. To clarify this statement, OSM met with Kentucky on November 20th, 2000 to determine how the cost estimates would be calculated. Kentucky stated that the cost estimates will be based upon the type of work to be performed at a unit cost and is based upon AML staff's most current actual cost experience in the vicinity of the work site (Administrative Record No. KY-1507).

The Director finds that Subsection 1 (13) satisfies the second minimum criterion set forth in the January 29, 1987, letter (Administrative Record No. KY-1508).

Sections 2 through 4 identify circumstances under which certain proposed in-kind permittees, civil penalties, and sites will not be eligible for in-kind reclamation. A proposed in-kind permittee that is ineligible to receive a permit under KRS Chapter 350 and 405 KAR Chapters 7-24 for a reason other than nonpayment of a civil penalty will not be eligible for in-kind reclamation. In-kind reclamation in lieu of civil penalties will not be authorized if the violation that led to any of the civil penalties remains unabated; or if the proposed in-kind permittee entered into an agreed order with the Cabinet to pay the civil penalty and failed to comply with the agreed order. Section 4 defines an ineligible site as that which is:

• Under a valid permit under KRS Chapter 350 for which a bond has not been forfeited;

• Under another valid Federal, State, or local permit under which the permit holder has responsibility for environmental conditions at the site; or

• Is affected by an ongoing enforcement action for violation of Federal, State, or local environmental laws, unless the agency pursuing the enforcement action consents.

Kentucky further clarified that the only post-SMCRA sites that are eligible are those “where the bond is forfeited, the bond is inadequate, alternative enforcement has failed and there is no other enforcement recourse under Title V” of SMCRA. The Director finds that Section 4 of the proposed amendment and the delineation of mine sites and non-mine sites in Section 1 and the Kentucky's November 20, 2000, response (Administrative Record No. 1507) satisfy the first minimum criterion set forth in the January 29, 1987, letter (Administrative Record No. 1508).

Provisions and requirements for the selection of sites for in-kind reclamation are included in Section 5 of the amendment. The amendment authorizes the Cabinet to compile a prioritized list of candidate sites for consideration, and requires that the list be made available to the public. The section further requires the Cabinet to consult with the county fiscal court; and authorizes the Cabinet to consult with the in-kind permittee, other government agencies, and the general public in its selection of a site and in-kind reclamation activity for each application. The amendment permits the Cabinet to give preference to sites or activities that address environmental impacts from coal mining.

Section 6 describes the criteria concerning the types of in-kind reclamation activities and what costs can be authorized. Activities not authorized include: those that the in-kind permittee already has a duty to perform under KRS Chapter 350 or other Federal, State or local law; activities which the in-kind permittee already has a legal obligation to perform under a valid contract; and activities on lands or waters in which the in-kind permittee has a financial interest. The amendment prohibits certain costs such as: those which incurred prior to the Agreement; equipment or services donated by a party other than the in-kind permittee; payments for access to the site; transportation; and administrative costs and overhead. The amendment permits authorization of reclamation activities in conjunction with AML projects of the Cabinet under KRS 350.550 through 350.597. The amendment also permits the authorization of in-kind reclamation in conjunction with the reclamation of bond-forfeiture sites, provided the in-kind permittee: did not own or control the site under KRS Chapter 350; was not an operator or agent on the site under KRS Chapter 350; and has no direct or indirect ownership or other interest in the land.

Section 7 of the amendment specifies the procedures an in-kind permittee must follow to request performance of in-kind reclamation. Among other stipulations, the amendment clarifies that filing a request will not stay the collection of the civil penalty. The amendment also requires the Cabinet to notify the in-kind permittee in writing whether it intends to pursue an Agreement within 15 days of receipt of the request.

Section 8 lists the information required in the Agreement and other provisions and limitations relating to the Agreement. Subsection 8 (1)(g) requires that the Agreement specify the time span within which the authorized activities shall be completed. Subsection 8 (5) stipulates that the Cabinet may terminate the Agreement at any time if the in-kind permittee fails to satisfy its terms. Subsections 8 (7) and (8) state that the civil penalty shall remain due and payable until the Cabinet has determined in writing that the in-kind permittee has satisfactorily fulfilled the terms of the Agreement; and if the Agreement is breached, the full-assessed civil penalty will be due and payable. Subsection 8 (6) requires the Cabinet to conduct field inspections as necessary to monitor progress under the Agreement. In a November 20, 2000, memorandum (Administrative Record No. KY-1507), Kentucky stated that the in-kind reclamation site will be inspected during critical phases of the work and the number of inspections will depend in part on the size or duration of the project. Kentucky stated that at a minimum an in-kind reclamation site will be inspected once to ensure the work is satisfactorily completed under the terms of the Agreement (Administrative Record No. KY-1507).

The Director finds that Subsections 8 (1)(g) and (5) through (8), and the November 20, 2000, (Administrative Record No. KY-1507) memorandum satisfy the third, fourth and fifth minimum criteria, as set forth in the January 29, 1987, letter (Administrative Record No. KY-1508).

The civil penalty provisions at section 518 of SMCRA and the Federal rules at 30 CFR 845.20 do not specify the method of payment for assessed penalties. Since Kentucky is not changing how it assesses civil penalties, this amendment continues to uphold the purpose of civil penalties, which is to “deter violations and to ensure maximum compliance with . . . [SMCRA] on the part of the coal mining industry.” (30 CFR 845.2) Allowing an in-kind permittee to perform reclamation in lieu of paying a civil monetary penalty is still a penalty. Therefore, the Director finds that the June 10, 1999, revised amendment is consistent with the purpose and requirements for payment of penalties in section 518 of SMCRA. Additionally, the amendment satisfies the minimum criteria for approval set forth in the January 29, 1987, letter.

By letters dated, January 14, 1999 (Administrative Record No. KY-1453), February 8, 1999 (Administrative Record No. KY-1456), and July 21, 1999 (Administrative Record No. KY-1464), these three comment letters were submitted by an environmental group and a mining company.

One commenter posited that in-kind reclamation activities constitute a regulated “surface coal mining operation” and therefore must occur under a SMCRA Title V permit and bond. The commenter claimed that the proposal to substitute an Agreement for a permit is dubious unless the Agreement contains all of the safeguards and conditions of a permit, including public notice and the opportunity to comment on the proposed reclamation; bond coverage; and a specific reclamation plan setting enforceable and measurable benchmarks to assure that the site is left no worse and is in fact properly reclaimed. The commenter is concerned that in-kind reclamation will occur under circumstances that create a risk of inadequate reclamation from the surface landowner's standpoint. Third-party intervention on a site under an Agreement may extinguish the obligations of the party who initially disturbed and abandoned the site. If the reclamation work turns out to have been inadequate, the landowner will be left without recourse.

As stated in our findings, we do not agree that the definition of “surface coal mining and reclamation operations” includes the in-kind activities authorized under this amendment. Therefore, no Title V permitting or bonding requirements apply. Sections (1)(6)(b) and (1)(7) of the amendment safeguard the landowner's interests by requiring that the permittee performing the in-kind reclamation (1) have a public liability insurance policy in effect in an amount adequate to compensate for both personal injury and property damage that may result from the reclamation activities; and (2) provide a performance bond for all in-kind reclamation of mine sites. For in-kind reclamation of sites other than mine sites, the Cabinet may require a performance bond if the reclamation activities could create a risk of environmental harm. Perhaps the most important safeguard is the requirement that the in-kind permittee obtain right of entry from the landowner.

We do not share the commenter's concern that third-party intervention on a mine site under an Agreement may extinguish the obligations of the party who initially disturbed and abandoned the site. First, to the extent that the in-kind permittee corrects outstanding violations, we see no reason why the landowner would have any objection to the extinguishments of those obligations. Second, Section 4 of the amendment provides that sites under a valid SMCRA permit for which the bond has not been forfeited are not eligible. It also specifies that sites under another valid federal, state, or local permit are not eligible if the permit holder still has responsibility for environmental conditions at the site. Third, nothing in the amendment absolves the previous permittee or operator of any liability.

One commenter questioned the adequacy of Section 7(6) of the amendment, which requires the Cabinet to notify the in-kind permittee within 15 days whether it intends to pursue an Agreement in response to the in-kind permittee's request to perform in-kind reclamation. According to the commenter, 15 days is insufficient time to involve the surface landowner and adjoining landowners in Agreement negotiation and the decision on whether to allow the in-kind reclamation activity.

SMCRA and the implementing Federal regulations contain no provisions relating to landowner participation in in-kind reclamation. Therefore, we have no legal basis for requiring that Kentucky make the modifications sought by the commenter. In addition, we concur with Kentucky's Statement of Consideration that the landowner will automatically have a major role in the Agreement process because the in-kind permittee must first obtain right of entry from the landowner. Kentucky also stated that, as a practical matter, there will be discussions with the surface landowner, and possibly with adjoining surface owners, during the process of determining whether a specific site is an appropriate candidate for in-kind reclamation (Administration Record No. KY-1458). Section 5(4) of the amendment grants Kentucky the discretion to consult with private individuals regarding the selection of sites and the activities to be authorized. Additionally, Section 8 gives Kentucky the discretion to include other parties to the Agreement if they are necessary.

The commenter further stated that the amendment should specify a time by which negotiations will either be successfully completed or the penalty will be collected. In its Statement of Consideration, Kentucky stated that if the negotiation over the Agreement is unproductive, the Cabinet can end the discussion at any time and demand cash payment.

Finally, the commenter argued that any unpaid civil penalty interest should continue to accrue during negotiations. In response, Kentucky stated that any interest due and owing would not be tolled during discussions.

A commenter stated that the regulation should explicitly reference the process by which a third-party landowner can secure review and enforcement of the terms of a reclamation agreement. The commenter is concerned that, without explicit reference to such a process, an Agreement will fail to provide the required opportunity for public review that is mandated for permit-related actions by the Cabinet, and thus fail to provide a mechanism as effective as the permit in this regard. According to another comment, Section 8 of the amendment should clarify that when an Agreement falls within the ambit of the definition of “surface coal mining and reclamation operations,” the inspection and citizen participation procedures of 405 KAR Chapters 7-24 apply. The commenter further states that, for other reclamation activities, inspections should occur at all critical times in the reclamation plan, and termination of the Agreement should automatically trigger forfeiture of whatever bond has been posted.

As discussed in our findings, in-kind reclamation is not a surface coal mining and reclamation operation. Therefore, there is no legal basis to require that reclamation agreements include provisions for inspection, enforcement, and public participation consistent with those applicable to permits and permitting actions under Title V of SMCRA. However, Kentucky has stated that if a landowner observes actions or conditions that he believes are inconsistent with the Agreement, he can bring them to the attention of the Cabinet and the in-kind permittee. In addition, Section 8(6) of the amendment requires that the Cabinet conduct field inspections as necessary to monitor progress under the Agreement. In subsequent correspondence Kentucky stated that it intends to conduct inspections during critical phases of the work and would conduct at least one inspection upon completion of work. Kentucky anticipates that most in-kind reclamation projects will be small and take less than a week to complete.

A commenter states that—

If the comment refers to outstanding violations of environmental laws committed on the in-kind reclamation site by someone other than the in-kind permittee, we disagree that the in-kind permittee should be held liable for violations he, himself, did not commit, even if he fails to satisfy the terms of the Agreement. There is no legal basis under SMCRA for assigning responsibility for those violations to the in-kind permittee.

If, on the other hand, the commenter is referring to violations committed by the in-kind permittee on the in-kind reclamation site, we have no authority to require the State to take enforcement action under Title V of SMCRA because in-kind reclamation is not a surface coal mining operation under SMCRA and is outside the jurisdiction of SMCRA. However, under Section 8(7) of the amendment, if Kentucky terminates the Agreement for failure to comply with all of its terms, the in-kind permittee will be liable for the full amount of all existing civil penalties he previously owed. Consequently, the permittee would be subject to the prohibition on issuance of future surface coal mining permits under 405 KAR 8:010 Section 13 and section 510(c) of SMCRA.

One commenter expressed concerns over Subsections (3) through (5) of Section 2 in the December 22, 1998, version of the proposed amendment. In that version, an in-kind permittee was deemed ineligible for in-kind reclamation if: he had an outstanding violation under KRS Chapter 350 and had not corrected the violation; he owned or controlled a surface coal mining operation for which the permit had been revoked or the bond forfeited, or which was currently in violation of KRS Chapter 350, and the correction of the violation had not been completed; or he was in violation of other Federal, State, or local environmental laws. The commenter indicated that large companies with multiple operations are rarely, if ever, free from violations of any laws and regulations. The time required to avoid or correct violations of environmental laws can be extensive. The limitations imposed by the amendment would have afforded large companies very little opportunity to perform in-kind reclamation.

In response to a similar comment received during the state's rulemaking process, Kentucky has eliminated Subsections (1) through (5) in the June 10, 1999, version of the amendment. The amendment now defines an ineligible in-kind permittee as one who is ineligible to receive a permit under KRS Chapter 350 and 405 KAR Chapters 7-24 for a reason other than non-payment of a civil penalty. The Director finds that this change renders the above comment moot.

A commenter recommends that Section 8 of the proposed amendment should require that the Agreement include other permits needed for the State or Federal government, including water, floodplain, air, dredge-and-fill, transportation, etc. We believe that adding this requirement is repetitive since subsection 1(8) already requires that the in-kind permittee comply with all Federal, State, and local laws and regulations.

Under 30 CFR 732.17(h)(11)(i) and section 503 (b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-1509). No comments were received.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a written concurrence from EPA for those provisions of the proposed program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Kentucky proposed in this amendment pertain to air or water quality standards. Therefore we did not ask EPA to concur on the amendment. By letter dated February 1, 1999, we requested comments on the amendment from EPA (Administrative Record Number KY-1509). EPA did not respond to our request.

Based on the above findings we approve the amendment sent to us by Kentucky.

To implement this decision, we are amending the Federal regulations at 30 CFR part 917, which codify decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effectively immediately will expedite that process. This will not create a hardship for Kentucky but rather aid Kentucky's reclamation abilities. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications under Executive Order 12630 and, therefore, a takings implication assessment is not required. This determination is based on the fact that the rule would allow a person assessed a civil monetary penalty the option of performing in-kind reclamation, environmental rehabilitation, or similar action to correct environmental damage in lieu of making cash payment.

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

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

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

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

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

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

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This determination is based on the fact that the rule would allow a person assessed a civil monetary penalty the option, after certain requirements are met, of performing in-kind reclamation, environmental rehabilitation, or similar action to correct environmental damage in lieu of making a cash payment. The rule does not impose any new costs. It is assumed that the person choosing this option would do so because of a perceived benefit that would result.

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

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

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

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

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal merely provides an alternative means of paying a penalty. The rule does not impose any new costs.

Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory obligation on manufacturers and importers of digital audio recording devices and media (“DART”) who distribute the products in the United States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003. Distribution of these royalty fees may be made to any interested copyright owner who has filed a claim and (1) whose sound recording was distributed in the form of digital musical recordings or analog musical recordings and (2) whose musical work was distributed in the form of digital musical recordings or analog musical recordings or disseminated to the public in transmissions. 17 U.S.C. 1006.

Section 1007 provides that claims to these royalty fees must be filed “[d]uring the first 2 months of each calendar year” with the Librarian of Congress “in such form and manner as the Librarian of Congress shall prescribe by regulation.” 17 U.S.C. 1007. Part 259 of title 37 of the Code of Federal Regulations sets forth the procedures for the filing of claims to the DART royalty funds. Section 259.5 states that in order for a claim to be considered timely filed with the Copyright Office, the claims either have to be hand delivered to the Office by the last day in February  1 or if sent by mail, received by the Office by the last day in February or bear a January or February United States Postal Service postmark. 37 CFR 259.5(a). Claims received after the last day in February will be accepted as timely filed only upon proof that the claim was placed within the United States Postal Service during the months of January or February. 37 CFR 259.5(e). A January or February postmark of the United States Postal Service on the envelope containing the claim or, if sent by certified mail return receipt requested, on the certified mail receipt constitutes sufficient proof that the claim was timely filed. 2 37 CFR 259.5(e). However, the regulations do not provide for the filing of DART claims by alternative methods such as electronic submission or facsimile transmission; and until now, the Office has perceived no need for alternative methods in filing these claims.

Unfortunately, recent events, namely the concerns about anthrax in the United States Postal Service facilities in the District of Columbia, have caused severe disruptions of postal service to the Office since October 17, 2001. See 66 FR 62942 (December 4, 2001) and 66 FR 63267 (December 5, 2001). Such disruptions continue and will most likely worsen in the coming weeks, since all incoming mail will be diverted to an off-site location for treatment. Consequently, in light of these disruptions, the Office is offering and recommending alternative methods for the filing of DART claims to the 2001 royalty funds. The alternative methods set forth in this document apply only to the filing of DART claims for the 2001 royalties which are due by February 28, 2002, and in no way apply to other filings with the Office.

This document covers only the means by which claims may be accepted as timely filed; all other filing requirements, such as the content of claims, remain unchanged, except as noted herein. See 37 CFR part 259.

Claims to the 2001 DART royalty funds may be submitted as follows:

In order to best ensure the timely receipt by the Copyright Office of their DART claims, the Office strongly encourages claimants to personally deliver their claims by 5 p.m. E.S.T. on February 28, 2002, to the Office of the Copyright General Counsel, James Madison Memorial Building, Room 403, First and Independence Avenue, SE, Washington, DC. Private carriers should not be used for such delivery, as packages brought in by private carriers are subject to treatment at the off-site facility before being delivered to the Office and will be deemed untimely and rejected unless the treated package is received by the Office of the Copyright General Counsel by 5 p.m. E.S.T. on February 28, 2002. Thus, claims should be hand delivered by the claimant or a representative of the claimant (i.e., the claimant's attorney or a member of the attorney's staff).

Claimants hand delivering their claims should note that they must follow all provisions set forth in 37 CFR part 259.

Claimants may submit their claims via electronic mail as file attachments, and such submissions should be sent to “dartclaims@loc.gov.” The Office has devised forms for both single and joint DART claims, which are posted on its website at http://www.loc.gov/copyright/forms/dart. Claimants filing their claims electronically must use these and only these forms, and the forms must be sent in a single file in either Adobe Portable Document (“PDF”) format, in Microsoft Word Version 10.0 or earlier, or in WordPerfect 9 or earlier. Claims sent as attachments using formats other than those specified in this Notice will not be accepted by the Office. Likewise, claims sent as text messages, and not as attachments, will also be rejected by the Office.

When filing claims electronically, all provisions set forth in 37 CFR part 259 apply except § 259.3(b), which requires the original signature of the claimant or of the claimant's duly authorized representative on the claim. The Office is waiving this provision for this filing period because at this time the Office is not equipped to receive and process electronic signatures.

Claims filed by electronic mail must be received by the Office no later than 11:59 p.m. E.S.T. on February 28, 2002. Specifically, the electronic message must be received in the Office's server by that time. Any claim received after that time will be considered as untimely filed. Therefore, claimants submitting their claims via electronic mail are strongly encouraged to send their claim no later than February 27, 2002, in order to better ensure timely receipt by the Office.

Claims may be filed with the Office via facsimile transmission and such filings must be sent to (202) 252-3423. Claims filed in this manner must be received in the Office no later than 5 p.m. E.S.T. on February 28, 2002. The fax machine will be disconnected at that time. Claims sent to any other fax number will not be accepted by the Office.

When filing claims via facsimile transmission, claimants must follow all provisions set forth in 37 CFR part 259 apply with the exception of § 259.5(d), which prohibits the filing of claims by facsimile transmission. The Office is waiving this provision at this time in order to assist claimants in the timely filing of their claims.

Section 259.5(a)(2) directs claimants filing their claims by mail to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box 70977, Southwest Station, Washington, DC 20024. Claimants electing to send their claims by mail are encouraged to send their claims by certified mail return receipt requested, to have the certified mail receipt (PS Form 3800) stamped by the United States Postal Service, and to retain the certified mail receipt in order to provide proof of timely filing, should the claim reach the Office after the last day in February. In the event there is a question as to whether the claim was deposited with the United States Postal Service during the months of January or February, the claimant must produce the certified mail receipt (PS Form 3800) which bears a United States Postal Service postmark, indicating an appropriate date.

However, concerns about possible anthrax contamination of the mail have resulted in the imminent treatment of all mail coming to the Copyright Office. In the near future, all Copyright Office mail will be sent to an off-site facility for treatment, including irradiation. Although it is not possible at this time to determine the length of time needed to complete this process, the delay could be significant. In addition, it is not known what, if any, damage will be caused to the mail as a result of treatment.

Given these uncertainties, claimants are strongly urged not to use the mail as a means of filing their claims to the 2001 DART royalties. While the Office is not prohibiting the filing of claims by mail, those who do so assume the risk that their claim will not reach the Office in a timely manner, or at all, and/or that the mail, when received by the Office, will be significantly damaged. Claims sent by mail should be addressed in accordance with § 259.5(a)(2), and the Office again strongly encourages the claimant to send the claim by certified mail return receipt requested, to have the certified mail receipt (PS Form 3800) stamped by the United States Postal Service, and to retain the certified mail receipt, as it constitutes the only acceptable proof of timely filing of the claim. Claims dated only with a business meter that are received by the Office after February 28, 2002, will be rejected as being untimely filed.

When filing claims by this method, claimants must follow all provisions set forth in 37 CFR part 259.

If a claimant has deposited his or her claim in the mail prior to the publication of this Notice, the claimant is encouraged to also use one of the alternative methods of filing described herein in order to better ensure that their claim will be received by the Office in a timely fashion.

The regulations governing the filing of DART claims require “the original signature of the claimant or of a duly authorized representative of the claimant,” 37 CFR 259.3(b), and do not allow claims to be filed by “facsimile transmission,” 37 CFR 259.5(d). This document, however, waives these provisions as set forth herein solely for the purpose of filing claims to the 2001 DART royalties. The Office is not, and indeed cannot, waive the statutory deadline for the filing of DART claims. See, United States v. Locke, 471 U.S. 84, 101 (1985). Thus, claimants are still required to file their claims by February 28, 2002.

Waiver of an agency's rules is “appropriate only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest.” Northeast Cellular Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972). Under ordinary circumstances, the Office is reluctant to waive its regulations. However, the recent anthrax scare constitutes a special—indeed, an extraordinary—circumstance which has forced the Office to deviate from its usual mail processing procedures. Specifically, all incoming mail will be sent to an off-site location for treatment before being delivered to the Office. This process will delay the Office's receipt of its mail; however, the actual length of this delay is not known at this time. In addition, it is unknown at this time the degree to which the integrity of treated mail will be compromised. Thus, given such uncertainties, the Office believes that the public interest will best be served by waiving, for this filing period only, the requirement that DART claims bear the original signature of the claimant or of a duly authorized representative of the claimant, when, and only when, such claim is filed electronically.

Because the Office is discouraging claimants from filing their claims through the mail due to the uncertainties surrounding the mail treatment process, the public interest would not be served if the Office required DART claimants to provide original signatures on their claims for this filing period and disallowed filing by facsimile because claimants would then be limited to filing their claims by the two options currently available—hand delivery and U.S. mail. Thus, the only way claimants could ensure timely filing of their claims would be to hand deliver them to the Office. Those claimants for whom personal delivery of their claims is not feasible would be placed at an unfair disadvantage.

The Office cannot waive the statutory deadline set forth in 17 U.S.C. 1007 and accept claims filed after February 28, 2002. See Locke, supra. Therefore, in order to serve the public interest the Office is providing claimants with alternative methods of filing, in addition to those set forth in the regulations, in order to assist them in timely filing their claims. By allowing claims to be filed by electronic mail and facsimile transmission, the Office is affording to all claimants an equal opportunity to meet the statutory deadline.

Again, this waiver applies only to the filing of DART claims to the 2001 royalties which must be filed by February 28, 2002. Once the mail treatment process is operational, the Office may need to reexamine its regulations governing any filing coming into the Office. However, such reexamination, if necessary, will take place at a future date.

The Semipostal Authorization Act, Public Law No. 106-253, 114 Stat. 634 (2000), authorizes the Postal Service to establish a 10-year program to sell semipostal stamps. The differential between the price of a semipostal stamp and the First-Class Mail® service rate, less an offset for the reasonable costs of the Postal Service, consists of an amount to fund causes that the “Postal Service determines to be in the national public interest and appropriate.” By law, revenue from sales (net of postage and the reasonable costs of the Postal Service) is to be transferred to selected executive agencies within the meaning of 5 U.S.C. § 105.

After soliciting public comment on proposed rules, on June 12, 2001, the Postal Service published a final rule establishing the regulations for the Semipostal Stamp Program. On November 12, 2001, Public Law No. 107-67, 115 Stat. 514 (2001), was enacted. Public Law No. 107-67 extends the sales period of the Breast Cancer Research stamp until December 31, 2003, and provides that the Postal Service must issue two additional semipostal stamps, to which selected provisions of 39 U.S.C. 416 apply. The first is a semipostal stamp to provide assistance to the families of the emergency relief personnel killed or permanently disabled in connection with the terrorist attacks of September 11, 2001. The Heroes semipostal stamp is to be issued as soon as practicable and may remain on sale through December 31, 2004. Funds raised in connection with this semipostal stamp are to be transferred to the Federal Emergency Management Agency.

The second is a semipostal stamp to fund domestic violence programs. The Domestic Violence semipostal stamp is to be issued as soon as practicable, but no later than the beginning of 2004, and may remain on sale through December 31, 2006. Funds raised in connection with this stamp are to be transferred to the U.S. Department of Health and Human Services.

To implement Public Law No. 107-67, the Postal Service is revising its regulations governing the Semipostal Stamp Program. In particular, 39 CFR 551.6 is revised to incorporate the new pricing formula for semipostal stamps issued under authority of 39 U.S.C. 416. This includes not only semipostal stamps issued by the Postal Service under its discretionary authority, but also the Heroes and Domestic Violence semipostal stamps. The new pricing formula provides that the differential, i.e., the difference between the purchase price and the postage value, must be at least 15 percent of the postage value of the semipostal stamp, and the price must be divisible by five. Section 551.6 is accordingly revised to reflect the change in the pricing formula.

Public Law No. 107-67 provides that both the Heroes and Domestic Violence semipostal stamps are not subject to any limitation prescribed by the Postal Service “relating to whether more than one semipostal may be offered for sale at the same time.” The Postal Service notes that 39 CFR 551.5(a) establishes a limit of one semipostal stamp issued at one time. In light of the specific exceptions listed in Public Law No. 107-67, the Postal Service interprets this limitation to extend only to semipostal stamps issued under the Postal Service's discretionary program. Hence, the Postal Service submits that it is unnecessary to promulgate a substantive change to 39 CFR 551.5, although the section is revised to refer to the enactment of Public Law No. 107-67.

Finally, several nonsubstantive changes are made to Part 551 to incorporate the enactment of Public Law No. 107-67 and to reflect organizational changes within the Postal Service. Specifically, in 39 CFR 551.1 reference is made to Public Law No. 107-67. Sections 551.1 and 551.8 are revised to reflect a new organizational unit name for the Office of Finance, with responsibilities related to semipostal stamps. In addition, § 551.8(b) is amended to include the sharing of responsibility for selecting comparable stamps between the Offices of Accounting, Finance, Controller and the Office of Stamp Services.

The Postal Service hereby adopts the following revisions to the Code of Federal Regulations.

In the December 5, 2001 Federal Register (66 FR 63180), EPA issued a final approval of the operating permit program submitted by the State of New York, based, in part, on emergency rules that became effective on September 19, 2001, and that were scheduled to expire on December 18, 2001. Concurrent with EPA's proposed approval of the emergency rules, EPA proposed approval of the New York State operating permit program based on draft permanent rules that the State was expected to shortly submit in adopted form. The draft permanent rules were identical to the adopted emergency rules. On December 4, 2001, New York State filed a 60-day extension to its emergency rulemaking. Thus, the emergency rules are now scheduled to expire on February 1, 2002.

Subsequent to publication of the December 5, 2001 Federal Register Notice (66 FR 63180), New York submitted to EPA on January 2, 2002, copies of final permanent rules that became effective on January 18, 2002. These permanent rules are identical to those effective under the emergency rulemaking.

The final New York State operating permit program approval that was effective on November 30, 2001, and based in part on New York's emergency rules, was proposed by EPA in an October 25, 2001 Federal Register Notice (66 FR 53966). During the subsequent 30-day public comment period, EPA received one comment letter dated November 23, 2001 from the New York Public Interest Research Group (NYPIRG). NYPIRG challenged EPA's ability to proceed with full approval when, according to the comment, the program does not clearly conform to the requirements of 40 CFR part 70. NYPIRG also commented on the inadequacy of New York's definition of “major source.” The remaining issues raised in this comment letter were outside the scope of the subject action. As discussed in the December 5, 2001 Federal Register , EPA disagrees with these comments. 66 FR at 63181.

Therefore, based on the final, permanent rulemaking that became effective on January 18, 2002, EPA hereby grants final, full approval to the State of New York for an operating permit program in accordance with Title V of the Act and 40 CFR part 70. The specific program changes that are the subject of this Notice, which are the same changes that were the subject of EPA's approval under New York State's emergency rules, are delineated in the December 5, 2001 Federal Register Notice (66 FR 63180).

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 January 31, 2002. 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 February 1, 2002. EPA's full final approval of New York State's program based on the State's emergency rulemaking expires on February 1, 2002. In the absence of this full approval taking effect on January 31, 2002, 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 more than five years, first under an interim approval and then under full approval. 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 Act and 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. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective on January 31, 2002.

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 April 8, 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) of the Act).

For reasons set out in the preamble, Appendix A of part 70 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:

EPA Region V is publishing this direct final notice of deletion of the Lake Linden parcel and Operable Unit 2 of the Torch Lake Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in section 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective April 8, 2002, unless EPA receives adverse comments by March 7, 2002, on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Lake Linden parcel and Operable Unit 2 of the Torch Lake Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of this Site:

(1) The EPA consulted with Michigan on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) Michigan concurred with deleting these portions of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of intent to delete is published today in the “Proposed Rules” section of the Federal Register , as well as is being published in a major local newspaper of general circulation at or near the Site, and is being distributed to appropriate federal, state, and local government officials and other interested parties. The newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with a decision on the deletion based on the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions should future conditions warrant such actions.

The following information provides EPA's rationale for these Partial Site deletions from the NPL:

The Torch Lake Superfund Site (the Site) is located on the Keweenaw Peninsula in Houghton County, Michigan. The Site includes Torch Lake, the west shore of Torch Lake, the northern portion of Portage Lake, the Portage Lake Canal, Keweenaw Waterway, the North Entry to Lake Superior, Boston Pond, Calumet Lake, and other areas associated with the Keweenaw Basin. Tailing piles and slag piles deposited along the western shore of Torch Lake, Northern Portage Lake, Keweenaw Waterway, Lake Superior, Boston Pond, and Calumet Lake are also included as part of the Site. Tailing piles are located at Lake Linden, Hubbell/Tamarack City, Mason, Calumet Lake, Boston Pond, Michigan Smelter, Isle-Royale, Dollar Bay, and Gross Point. Slag piles are located at Quincy Smelter and Hubbell City.

Torch Lake was the site of copper milling and smelting facilities and operations for over 100 years. The lake was a repository of milling wastes, and served as the waterway for transportation to support the mining industry. The first mill opened on Torch Lake in 1868. At the mills, copper was extracted by crushing or “stamping” the rock into smaller pieces and driving them through successively smaller meshes. The copper and crushed rock were separated by gravimetric sorting in a liquid medium. The copper was sent to a smelter. The crushed rock particles, called “tailings,” were discarded along with mill processing water, typically by pumping into the lakes.

Mining output, milling activity, and tailing production peaked in the Keweenaw Peninsula in the early 1900s to 1920. All of the mills at Torch Lake were located on the west shore of the lake and many other mining mills and smelters were located throughout the Keweenaw Peninsula. In about 1916, advances in technology allowed recovery of copper from tailings previously deposited in Torch Lake. Dredges were used to collect submerged tailings, which were then screened, recrushed, and gravity separated. An ammonia leaching process involving cupric ammonium carbonate was used to recover copper and other metals from conglomerate tailings. During the 1920s, chemical reagents were used to further increase the efficiency of reclamation. The chemical reagents included lime, pyridine oil, coal tar creosotes, wood creosote, pine oil, and xanthates. After reclamation activities were complete, chemically treated tailings were returned to the lakes. In the 1930s and 1940s, the Torch Lake mills operated mainly to recover tailings in Torch Lake. In the 1950s, copper mills were still active, but by the late 1960s, copper milling had ceased.

Over 5 million tons of native copper was produced from the Keweenaw Peninsula and more than half of this was processed along the shores of Torch Lake. Between 1868 and 1968, approximately 200 million tons of tailings were dumped into Torch Lake filling at least 20 percent of the lake's original volume.

In June 1972, a discharge of 27,000 gallons of cupric ammonium carbonate leaching liquor occurred into the north end of Torch Lake from the storage vats at the Lake Linden Leaching Plant. The Michigan Water Resources Commission (MWRC) investigated the spill. The 1973 MWRC report discerned no deleterious effects associated with the spill, but did observe that discoloration of several acres of lake bottom indicated previous discharges.

In the 1970s, environmental concern developed regarding the century-long deposition of tailings into Torch Lake. High concentrations of copper and other heavy metals in Torch Lake sediments, toxic discharges into the lakes, and fish abnormalities prompted many investigations into long- and short-term impacts attributed to mine waste disposal. The International Joint Commission's Water Quality Board designated the Torch Lake basin as a Great Lakes Area of Concern (AOC) in 1983. Also in 1983, the Michigan Department of Public Health announced an advisory against the consumption of Torch Lake sauger and walleye fish due to tumors of unknown origin. The Torch Lake Site was proposed for inclusion on the National Priorities List (NPL) in October of 1984. The Site was placed on the NPL in June 1986. The Torch Lake Site is also on the list of sites identified under Michigan's Natural Resources and Environmental Protection Act 451 Part 201.

A Draft Remedial Action Plan (RAP) for the Torch Lake AOC was developed by Michigan Department of Natural Resources (MDNR) in October 1987 to address the contamination problems and to recommend the remedial action for Torch Lake. Revegetation of lakeshore tailings to minimize air-borne particulate matter was one of the recommended remedial actions in the RAP.

Attempts to establish vegetation on the tailing piles in Hubbell/Tamarack City have been conducted since the 1960s to stabilize the shoreline and to reduce air particulate from tailings. It has been estimated that 40 to 50 percent of tailings in this area are vegetated. The Portage Lake Water and Sewage Authority have been spray-irrigating sewage sludge on tailings in Mason City to promote natural vegetation.

On May 9, 1988, Special Notice Letters were issued to Universal Oil Products (UOP) and Quincy Mining Co. to perform a Remedial Investigation/Feasibility Study (RI/FS). UOP is the successor corporation of Calumet Hecla Mining Company which operated its milling and smelting on the shore of Lake Linden and disposed the generated tailings in the area. Quincy Mining Co. conducted smelting operations in the Hubbell area and disposed of tailings. On June 13, 1988, a Notice Letter was issued to Quincy Development Company, which was the current owner of a tailing pile located on the lake shore of Mason City. Negotiations for the RI/FS Consent Order with these Potentially Responsible Parties (PRPs) were not successful due to issues such as the extent of the Site, and the number of PRPs. Subsequently, U.S. EPA contracted with Donohue & Associates in November 1988 to perform the RI/FS at the Site.

On June 21, 1989, U.S. EPA collected a total of eight samples from drums located in the Old Calumet and Hecla Smelting Mill Site near Lake Linden, the Ahmeek Mill Site near Hubbell City, and the Quincy Site near Mason. On August 1, 1990, nine more samples were collected from drums located above the Tamarack Site near Tamarack City. Based on the results of these samples, U.S. EPA determined that some of these drums may have contained hazardous substances. During the week of May 8, 1989, the U.S. EPA also conducted ground penetrating radar and a subbottom profile (seismic) survey of the bottom of Torch Lake. The area in which this survey was conducted is immediately off-shore from the Old Calumet and Hecla Smelting Mill Site. The survey located several point targets (possibly drums) on the bottom of Torch Lake. Based on the drum sampling results and seismic survey, U.S. EPA executed an Administrative Order by Consent, dated July 30, 1991, which required six companies and individuals to sample and remove drums located on the shore and lake bottom. Pursuant to the Administrative Order, these entities removed 20 drums with unknown contents off-shore from the Peninsula Copper Inc., and the Old Calumet and Hecla Smelting Mill Site in September 1991. A total of 808 empty drums were found in the lake bottom. These empty drums were not removed from the lake bottom. A total of 82 drums and minor quantities of underlying soils were removed from the shore of Torch Lake. The removed drums and soils were sampled, over packed, and disposed off-site at a hazardous waste landfill.

Due to the size and complex nature of the Site, three OUs have been defined for the Site. OU I includes surface tailings, drums, and slag piles on the western shore of Torch Lake. Approximately 500 acres of tailings are exposed surficially in OU I. The Lake Linden parcel is included in OU I, as well as the Hubbell/Tamarack and Mason parcels.

OU II includes groundwater, surface water, submerged tailings and sediment in Torch Lake, Portage Lake, the Portage channel, and other water bodies at the site.

OU III includes tailing and slag deposits located in the north entry of Lake Superior, Michigan Smelter, Quincy Smelter, Calumet Lake, Isle-Royale, Boston Pond, and Grosse-Point(Point Mills).

Remedial Investigations (RIs) have been completed for all three operable units. The RI and Baseline Risk Assessment (BRA) reports for OU I was finalized in July 1991. The RI and BRA reports for OU III were finalized on February 7, 1992. The RI and BRA reports for OU II were finalized in April 1992. The Ecological Assessment for the entire Site was finalized in May 1992.

A Record of Decision (ROD) was completed to select remedial actions for OU I and III on September 30, 1992. A ROD was completed to select remedial actions for OU II on March 31, 1994.

The remedies primarily address ecological impacts. The most significant ecological impact is the severe degradation of the benthic communities in Torch Lake as a result of metal loadings from the mine tailings. The remedial action required that the contaminated stamp sands (tailings) and slag piles contributing to site-specific ecological risks at the Torch Lake Superfund Site (OUI & OUIII) be covered with a soil and vegetative cover as identified in the RODs for this Site and as documented in the Final Design Document dated September 10, 1998. No further response action was selected for OU II. OU II will be allowed to undergo natural recovery and detoxification.

In addition, the RODs for OU I and OU III required long-term monitoring of Torch Lake to assess the natural recovery and detoxification process after the remedy was implemented. Torch Lake was chosen as a worst-case scenario to study the recovery process. It was assumed that other affected water bodies would respond as well, or better, than Torch Lake to the implemented remedy.

A final design for OU I and OU III was completed in September 1998. Also in September 1998, U.S. EPA obligated $15.2 million for the implementation of the selected remedies for OU I and OU III. As of January 1, 2001, the remedial actions at the Lake Linden and Hubbell/Tamarack City portions of OU I have been completed.

As mention above, the RODs for OU I & OU III required long-term monitoring of Torch Lake to assess the natural recovery and detoxification process after the remedy was implemented. Other O & M activities include site inspections, repairs and fertilization of the vegetative cover, if necessary. Based on site inspections conducted during Summer 2001, repairs and fertilization of the soil and vegetative cover at the Lake Linden parcel are no longer necessary.

Because hazardous substance will remain at the Site above levels that allow for unrestricted use and unlimited exposure. The EPA will conduct periodic reviews at this Site. The review will be conducted pursuant to CERCLA section 121 (c) and as provided in the current guidance on Five Year Reviews; OSWER Directive 9355.7-03B-P, Comprehensive Five-Year Review Guidance, June 2001. The first five-year review for the Torch Lake Site is scheduled for September 2003.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with concurrence from the State of Michigan, has determined that all appropriate responses under CERCLA for the Lake Linden parcel and OU II have been completed, and that no further response actions under CERCLA are necessary. Therefore, EPA is deleting the Lake Linden parcel and Operable Unit 2 of the Torch Lake Superfund Site from the NPL.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective April 8, 2002, unless EPA receives adverse comments by March 7, 2002. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. EPA will prepare a response to comments and as appropriate continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

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

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Associate Director finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

The Associate Director has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR 1987 Comp.; p. 252.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR 1991 Comp.; p. 309.

Accordingly, 44 CFR part 64 is amended as follows:

The Federal Emergency Management Agency makes the final determinations listed below of modified base flood elevations for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Acting Executive Associate Director has resolved any appeals resulting from this notification.

The modified base flood elevations are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Acting Executive Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below of the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Acting Administrator, Federal Insurance and Mitigation Administration has resolved any appeals resulting from this notification.

The modified Base Flood Elevations are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified Base Flood Elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Acting Administrator, Federal Insurance and Mitigation Administration certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The modified Base Flood Elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified Base Flood Elevation determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified Base Flood Elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in Base Flood Elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Administrator, Federal Insurance and Mitigation Administration certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified Base Flood Elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Acting Executive Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below of BFEs and modified BFEs for each community listed. The proposed BFEs and proposed modified BFEs were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed BFEs and proposed modified BFEs were also published in the Federal Register .

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Acting Administrator, Federal Insurance and Mitigation Administration certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Accordingly, 44 CFR Part 67 is amended to read as follows:

The Federal Emergency Management Agency (FEMA or Agency) makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Acting Executive Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 90-189, adopted January 16, 2002, and released January 18, 2002. The full text of this decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals ll, 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.

The New England Fishery Management Council (Council) voted at its December 1998 meeting that May 1, 1999, would begin Year 1 of Amendment 12, with the expectation that the Amendment would be implemented by the autumn of 1999. The Council submitted its final version of Amendment 12 in April 1999. Based upon the Council’s assumption of an autumn 1999 implementation date, the regulations implementing Amendment 12 specified that the Year-4 default measures would become effective on May 1, 2002. However, due to extensive review and revisions, the Amendment did not actually become effective until April 28, 2000. Thus, Year 1 of Amendment 12 was actually only 3 days in duration (April 28 - April 30, 2000), rather than 8 to 10 months, as originally anticipated by the Council. As a result, under the current regulations, the WMC would have less than 2 years of data to analyze, and only one opportunity to implement an annual adjustment before the default measures are scheduled to be implemented (May 1, 2002). This is not consistent with the Council’s intent in Amendment 12. A proposed rule and request for comments was published in the Federal Register (66 FR 48020) on September 17, 2001. Details concerning the background of this action are discussed extensively in the preamble to the proposed rule and are not repeated here. In addition, copies of the analytical documents conducted in support of Amendment 12 upon which this action is based are available (see ADDRESSES ).

Comments on the proposed rule for this action were accepted through October 17, 2001. A total of 143 comments were received, all of which were from the commercial fishing industry; 141 were signed form letters. All 143 comments supported this action. This action is also strongly supported by both the New England and Mid-Atlantic Fishery Management Councils. A summary of the comments are as follows:

Comment : Commentor supports moving the default measures for small-mesh multispecies back one year because it recognizes the abbreviated nature of what was to have been a 4-year period as well as the possibility that current research will negate the need for implementation of the default ruling altogether.

Response : Comment is acknowledged.

Comment : Commentor, writing on behalf of its membership, supports delay of implementation of the year-4 default measures until May 1, 2003, because it will provide the Whiting Monitoring Committee with the additional time necessary to review the effectiveness of the existing plan.

Response : Comment is acknowledged.

Comment : 141 commentors support delay of implementation of the default measures because, they state, NMFS would then have two full years of data on the whiting fishery to gauge the effects of the trip limits and minimum mesh sizes. They add that delay would also allow the Whiting Monitoring Committee to fully assess the current management measures and recommend alternative default measures, if necessary.

Response : Comment is acknowledged.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule would not have a significant economic impact on a substantial number of small entities. No comments were received regarding the economic impact of this action. As a result, a regulatory flexibility analysis was not prepared.

This action has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

This final rule does not contain policies with federalism implications under E.O. 13132.

This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.