In fiscal year 2001, Congress provided funding to establish a Treasury rate loan program to address the backlog of qualified loan applications for insured municipal rate electric loans from RUS. RUS administered the Treasury rate loan program in a manner substantially the same as it administered the municipal rate program under a Notice of Funding Availability (NOFA) published in the Federal Register at 65 FR 80830 on December 22, 2000. Title III of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002 ( Pub. L. 107-76) authorizes a Treasury rate electric loan program of $750 million for FY 2002. RUS is amending its regulations to establish rules and regulations to administer the Treasury rate loan program.

This is to confirm the effective date of February 11, 2002, 7 CFR part 1710, Treasury Rate Direct Loan Program, published in the Federal Register on December 26, 2001, at 66 FR 66293.

The regulations in 9 CFR part 93, “Importation of Certain Animals, Birds, and Poultry, and Certain Animal, Bird, and Poultry Products; Requirements for Means of Conveyance and Shipping Containers” (referred to below as the regulations), prescribe, among other things, conditions for importing pet birds, performing birds or theatrical birds, and poultry and poultry products into the United States. Section 93.102(d) contains a list of limited ports of entry for pet birds imported into the United States under the provisions of § 93.101(c)(1) or § 93.101(c)(2) and for performing or theatrical birds imported under the provisions of § 93.101(f). Section 93.203(d) contains a list of limited ports of entry that are designated as having inspection facilities for the entry of poultry and poultry products such as poultry test specimens, or hatching eggs and day-old chicks which do not appear to require restraint and holding inspection facilities.

This rule will amend § 93.102(d) and § 92.203(d) in accordance with the procedures explained below under “Dates.” The amendments will remove Boston, MA, from both lists of limited ports of entry. Very few pet birds, performing birds, theatrical birds, poultry, or poultry products are currently imported through the port of Boston, MA. Importers are opting to use other limited ports of entry to bring these commodities into the United States, so we do not believe that removing Boston, MA, as a limited port for the entry of pet birds, performing or theatrical birds, and poultry and poultry products will have any negative effects on U.S. importers of these animals and products.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, on April 15, 2002, unless we receive written adverse comments or written notice of intent to submit adverse comments that are postmarked, delivered, or e-mailed by March 14, 2002.

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

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

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

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

This rule will remove Boston, MA, as a limited port of entry for the importation into the United States of pet birds, performing or theatrical birds, and poultry and poultry products. Very few of these animals or products are imported through the port of Boston, MA, as importers most often use other limited ports of entry to bring these animals and products into the United States. Therefore, we expect that this action will have no economic impact on any entities, large or small.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Airbus Model A330 and A340 series airplanes was published in the Federal Register on October 12, 2001 (66 FR 52068). That action proposed to require repetitive inspections and operational checks of the spring function of the emergency exit door slider mechanism, and corrective action if necessary.

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

The FAA's intention is for the follow-on actions in paragraphs (a)(1) and (a)(2) of this AD (application of corrosion inhibitor to the sliders, and repair or replacement of the slider, if necessary) to be accomplished before further flight after accomplishment of the detailed visual inspection and operational check in paragraph (a) of this AD. However, the words “before further flight” were inadvertently omitted from paragraphs (a)(1) and (a)(2) of the proposal. The FAA finds that our intent in those paragraphs is clear based on the fact that the All Operators Telexes referred to in this AD clearly include the application of corrosion inhibitor as part of the inspection procedures, and also explicitly indicate that repair or replacement of the slider, if necessary, must be accomplished before further flight. However, for further clarification, the FAA has revised paragraphs (a)(1) and (a)(2) of this AD to state that the actions in those paragraphs are required “before further flight.”

The FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 9 Model A330 series airplanes of U.S. registry will be affected by this AD. No Model A340 series airplanes affected by this action are currently on the U.S. Register.

It will take approximately 3 work hours per airplane to accomplish the required inspection, at the average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $1,620, or $180 per airplane, per inspection cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 737-200, -200C, -300, and -500 series airplanes was published in the Federal Register on July 25, 2001 (66 FR 38587). That action proposed to require replacement of the bolt and self-locking nut on the primary support pin of the main landing gear (MLG) support beam with a new bolt, castellated nut, washer, and cotter pin.

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

One commenter, the airplane manufacturer, requests that the FAA revise the proposed AD to refer to Boeing Service Bulletin 737-57A1260, Revision 2, dated October 18, 2001, as the acceptable source of service information for the proposed actions. (The proposed AD refers to the original issue of the service bulletin, dated June 15, 2000, and Revision 1 of the service bulletin, dated October 12, 2000, as appropriate sources of service information for the proposed actions.)

The FAA concurs. Since the issuance of the proposed AD, we have reviewed and approved Revision 2 of the service bulletin. This revision provides significant detailed information on which airplanes need the work described in the service bulletin and which do not. For example, the actions in Boeing Service Bulletin 737-57A1260, Revision 2, do not apply to airplanes in Groups 3 and 4, as listed in the service bulletin, if the airplane has been modified per Boeing Service Bulletin 737-57-1172, dated October 15, 1987; OR Boeing Service Bulletin 737-57-1216, dated December 17, 1992, Revision 1, dated September 23, 1993, or Revision 2, dated May 6, 1999 (but not both of those service bulletins). Revision 2 of the service bulletin also provides instructions for certain airplanes in alternative configurations. Because these changes are relieving in nature, we find that it is appropriate to revise paragraph (a), as well as the applicability statement, of this final rule to refer to Revision 2 of the service bulletin. We have also added a new Note 2 to this AD (and reordered a subsequent note accordingly) to state that accomplishment of the actions before the effective date of this AD per the original issue or Revision 1 of Boeing Service Bulletin 737-57A1260 is acceptable for compliance with paragraph (a) of this AD.

Another commenter reports that, when it tried to do Boeing Service Bulletin 737-57A1260 on an affected airplane, it found that the bolt sizes identified in that service bulletin did not match parts included with the associated kit. The commenter asks how Boeing will revise the service bulletin. We infer that the commenter attempted to accomplish the original issue or Revision 1 of the service bulletin, and we also infer that the commenter's airplane is one of the airplanes of alternative configuration which are acknowledged in Revision 2 of the service bulletin. We note that revising the final rule as described previously will positively address the commenter's concern, and no further change to the final rule is needed in this regard.

A third commenter requests that we revise the proposed AD to refer to Boeing Alert Service Bulletin 737-57A1260, Information Notice (IN) 02. The commenter notes that this IN contains information about alternative configurations and methods related to the installation of the castellated nut and cotter pin. We note that the data in the IN to which the commenter refers have been incorporated into Boeing Service Bulletin 737-57A1260, Revision 2; thus, no further change to the final rule is needed.

One commenter requests that we revise the proposed AD to state that accomplishment of Boeing Service Bulletin 737-57-1172 or 737-57-1216 is equivalent to the accomplishment of the original issue or Revision 1 of Boeing Alert Service Bulletin 737-57A1260. Along with its comment, the commenter includes a copy of a telex from the airplane manufacturer which indicates that a castellated nut with a cotter pin through the bolt shank meets the intent of Boeing Service Bulletin 737-57A1260.

We concur with the intent of the commenter's request. Airplanes in certain configurations, as defined under paragraph 1.E., “Compliance,” of Boeing Service Bulletin 737-57A1260, Revision 2, are not subject to the requirements of this AD. Therefore, we have added a new paragraph (b) to this AD (and reordered subsequent paragraphs accordingly) to clarify that airplanes in the configurations specified in Revision 2 are not subject to this AD. In addition, for clarification, we have revised paragraph (a) of this AD to specify that the existing parts to be replaced are a RETAINING bolt, a SELF-LOCKING nut, and associated hardware.

One commenter, the airplane manufacturer, requests that the FAA revise the proposed AD to explicitly caution operators that accomplishment of the actions in Boeing Service Bulletin 737-57-1216 may result in installation of self-locking nuts that are the subject of this AD. The commenter asserts that the sequencing of Boeing Service Bulletins 737-57-1216 and 737-57A1260 is critical. The commenter points out that the relationship between these service bulletins is noted in Boeing Service Bulletin 737-57-1216, Revision 2, IN 04, dated October 12, 2000. (That IN informs operators of certain airplanes that, if they do Boeing Service Bulletin 737-57-1216, they may be subject to Boeing Service Bulletin 737-57A1260.)

We concur with the commenter's request. While operators are responsible for installing only approved parts, we acknowledge that it may be helpful to advise operators of a related service bulletin that may conflict with the actions in this AD. We have added Note 1 to this final rule accordingly.

One commenter states that, if the unsafe condition exists only in “a batch of Kaynar nuts,” as stated in the referenced service bulletin, then the applicability of the proposed AD should be limited to airplanes built in the time period when that batch of nuts was used.

The FAA infers that the commenter is requesting that the applicability of this AD be limited. We note that the revision of the applicability to refer to Revision 2 of the service bulletin, as described previously, may address the commenter's concern, and we do not concur that any further change to this final rule needs to be made. The airplanes listed in the Effectivity section of the referenced service bulletin are those that the airplane manufacturer cannot be certain do not have affected nuts installed. While only certain airplanes included in the applicability of this AD will have discrepant nuts installed, neither we nor the airplane manufacturer are able to narrow the list of potentially affected airplanes any further than it has already been narrowed by Boeing Service Bulletin 737-57A1260, Revision 2.

Several commenters request that the FAA extend the compliance time for the proposed replacement. One commenter suggests only extension of the compliance time from the earlier of 12 months or 1,500 flight cycles after the effective date of the AD, to the earlier of 24 months or 4,000 flight cycles after the effective date of the AD. Three other commenters suggest adding new repetitive inspections for discrepancies of the nut and bolt at the proposed compliance time of the earlier of 12 months or 1,500 flight cycles after the effective date of the AD, and requiring the proposed replacement at the earlier of 24 months or 4,500 flight cycles after the effective date of the AD. Most of the commenters state that such an extension would ease scheduling difficulties by allowing affected operators to accomplish the proposed replacement at a scheduled maintenance visit.

We do not concur with the commenters' requests. The commenters provide no technical justification to show that extension of the compliance time would provide an acceptable level of safety. While the compliance time for the replacement required by this AD is based on the manufacturer's recommendation in its service bulletin, the FAA also considered the degree of urgency associated with addressing the subject unsafe condition and the average utilization of the affected fleet in developing an appropriate compliance time for this action. In light of all of these factors, the FAA finds a compliance time of 12 months or 1,500 flight cycles after the effective date of this AD, whichever is earlier, for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety. No change to the final rule is needed in this regard.

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

There are approximately 2,300 Model 737-200, -200C, -300, and -500 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 980 airplanes of U.S. registry will be affected by this AD, that it will take approximately 6 work hours per airplane to accomplish the replacement, and that the average labor rate is $60 per work hour. Required parts will cost approximately $39 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $391,020, or $399 per airplane.

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

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

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

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A330-243, -341, -342, and -343 series airplanes, which are equipped with Rolls-Royce engines. The DGAC advises that fatigue tests have revealed that the fail-safe link of the rear engine mount may not have adequate fatigue strength. The fail-safe link is intended to withstand operational loads in the event of loss of the primary load path for the engine. Failure of the fail-safe link of the rear engine mount, when combined with loss of the primary load path for the engine, could result in separation of the engine from the airplane.

Airbus has issued Service Bulletin A330-71-3010, dated September 25, 1999, which describes procedures for modifying the rear engine mount on the left- and right-hand sides of the airplane by replacing the existing fail-safe link with a new, improved fail-safe link. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2001-544(B), dated November 14, 2001, in order to assure the continued airworthiness of these airplanes in France.

Airbus Service Bulletin A330-71-3010 refers to Rolls-Royce Service Bulletin RB211-71-C639, dated September 10, 1999, as an additional source of service information for modification of the rear engine mount. The modification includes replacing the two-piece bearing with a one-piece bearing and increasing the thickness of the fail-safe link.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD is being issued to prevent failure of the fail-safe link of the rear engine mount, which, in combination with failure of the primary load path for the engine, could result in separation of the engine from the airplane. This AD requires accomplishment of the actions specified in the Airbus service bulletin described previously.

None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 40 work hours to accomplish the required actions, at an average labor rate of $60 per work hour. Required parts would be provided by the engine manufacturer at no charge to the operators. Based on these figures, the cost impact of this AD would be $2,400 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. Register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-392-AD.” The postcard will be date-stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A300 B2 and A300 B4; A300 B4-600, B4-600R, and F4-600R (collectively called A300-600); and A310 series airplanes; was published in the Federal Register on November 19, 2001 (66 FR 57900). That action proposed to require repetitive overhaul, including associated modifications, of the ram air turbine (RAT).

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

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

The FAA estimates that 153 Model A300 B2 and A300 B4; A300 B4-600, B4-600R, and F4-600R (collectively called A300-600); and Model A310 series airplanes; of U.S. registry will be affected by this AD. It will take approximately 4 work hours per airplane to remove and replace the RAT, at an average labor rate of $60 per work hour. Incorporation of the various modifications that will be required to complete the required overhaul at the overhaul facility will cost an average of approximately $67,500 per airplane, based on vendor-supplied information. Based on these figures, the average cost impact of the requirements of this AD on U.S. operators is estimated to be $67,740 per airplane, per overhaul.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757 series airplanes was published in the Federal Register on August 23, 2001 (66 FR 44323). That action proposed to require a one-time inspection of a wire bundle in the left wing front spar for chafing and for proper installation of a Teflon sleeve; corrective action, if necessary; and installation of extra protection against chafing.

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

One commenter requests that the FAA revise the proposed AD to give credit to operators who have accomplished the actions specified in the proposed AD in accordance with service information other than that identified in the proposed AD. The commenter notes that Boeing Service Letters 757-SL-29-024-B, dated November 3, 1995, and 757-SL-29-024-C, dated June 13, 2000, also address the unsafe condition identified in the proposed AD. The commenter further states that it has inspected its affected airplanes in accordance with Boeing Service Letter 757-SL-29-024-C.

The FAA concurs with the commenter's request. We find that the procedures in the service letters referenced by the commenter are nearly identical to those in Boeing Service Bulletins 757-29-0058 and 757-29-0059, both dated November 9, 2000, which the proposed AD identifies as appropriate sources of service information. Therefore, we have added a new Note 2, and renumbered subsequent notes from the proposed AD accordingly, to give credit for actions accomplished before the effective date of this AD in accordance with Boeing Service Letter 757-SL-29-024-B or 757-SL-29-024-C.

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

There are approximately 1,058 Model 757 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 615 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. The cost of required parts is negligible. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $36,900, or $60 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8 series airplanes was published in the Federal Register on July 9, 1998 (63 FR 37074). That action proposed to require among other things, repetitive leak tests of the lavatory drain systems and repair, if necessary; installation of a lever lock cap, vacuum breaker check valve, or flush/fill line ball valve on the flush/fill line; periodic seal changes; and replacement of “donut” type waste drain valves installed in the waste drain system.

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

One commenter agrees with the proposal.

One commenter requests that the FAA revise paragraph (a) of the proposed rule to specify that it is not necessary to pressurize the aircraft to verify the integrity of service panel drain valves if the maintenance personnel perform a leak test. The commenter states that such a revision would be consistent with other ADs. The commenter also notes that such testing of the inner seal with air in a leak test is much more stringent than testing with a liquid, as it is obviously much easier for air to leak than the lavatory fluid. The commenter also requests that the FAA revise the duration of the leak test from five minutes to one minute when testing the inner seals of service panel valves with a leak check tool that applies a vacuum from the downstream side of the valve.

The FAA does not agree that paragraph (a) of this AD should be revised for the reasons the commenter states. We note that the Shaw Aero vacuum test tool has been approved to allow testing without requiring fluid upstream of the valve. However, if specific procedures were provided for using a leak test too, the FAA would consider a request for an alternative method of compliance in accordance with paragraph (d) of this AD. Since the commenter did not submit data that would justify a shorter interval for the vacuum test tool, we have no basis to reduce the duration of the leak test. No change is necessary to the final rule in this regard.

One commenter requests that the interval for changing the Pneudraulics valve seals specified in paragraph (a) of the proposed rule be reduced from every 6,000 flight hours to every 5,000 flight hours. The commenter states that the design limitations, and the potential for ice, hardened debris, and “black tar” build-up on the ball at the service panel seals are much more susceptible to damage. Additionally, the commenter notes that the location of the service panel (Pneudraulics valve) relative to the in-line ball valve makes those seals or mating surfaces more susceptible to damage by service and maintenance personnel.

The FAA does not agree with the commenter's request. The 6,000-flight hour interval for changing the Pneudraulics valve seals is based on extensive operating experience. Further, we have received no adverse reports on the Pneudraulics valve seals describing those problems that were indicated by the commenter. No change to the final rule is necessary in this regard.

One commenter requests that the leak test interval for Shaw Aero valves listed in Table 1 of the proposed AD be extended from every 1,000 flight hours to every 2,000 flight hours. The commenter argues that the in-service history of the Shaw Aero devices demonstrates a reliability factor that justifies such an extension.

The FAA agrees with the commenter's request, and has previously provided a similar interval extension for those valves on other “blue ice” related ADs. We have revised Table 1 of the final rule to reflect extension of the leak check interval to every 2,000 flight hours for those valves. Since the valves specified in Table 1 are now approved for an interval of 2,000 flight hours, we have removed Table 1 from paragraph (a)(4) of the NPRM that specifies approval for an interval of 1,000 flight hours, and have inserted Table 1 into paragraph (a)(3) of the final rule that specifies approval for valves with an interval of 2,000 flight hours.

One commenter requests that certain P/Ns listed in Table 1 of the proposed AD be corrected. The FAA concurs and has revised Table 1 of the final rule.

This same commenter requests that the FAA add the cost of performing a leak check with the vacuum pump test tool. The commenter states that operators should be made aware that the vacuum pump test tool is more economical than pressurizing the airplane to obtain the required 3-pounds-per-square-32inch (psi) differential pressure.

The FAA does not agree that the estimated costs should be revised for the reasons the commenter states. As stated above, operators may request an alternative method of compliance for using the vacuum pump test tool by providing us with specific procedures for performing the leak test. Even though using the vacuum pump test tool may be less costly and may reduce the time required to perform the leak test, no dollar values were provided to us for comparison. No change is necessary to the final rule in this regard.

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

There are approximately 306 Model DC-8 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 229 airplanes of U.S. registry and 26 U.S. operators will be affected by this AD.

The required waste drain system leak test and outer cap inspections will take approximately 6 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact on U.S. operators of the waste drain system leak test and outer cap inspection is estimated to be $82,440, or $360 per airplane, per test/inspection.

Certain airplanes (i.e., those that have “donut” type drain valves installed) may be required to be leak tested as many as 15 times each year. Certain other airplanes having other valve configurations will be required to be leak tested as few as 3 times each year. Based on these figures, the cost impact of this requirement is estimated to be between $1,080 and $5,400 per airplane, per year.

With regard to replacement of “donut” type drain valves, the cost of a new valve is approximately $1,200. However, the number of leakage tests for an airplane that flies an average of 3,000 flight hours a year is reduced from 15 tests to 3 tests, which essentially pays for the cost of the replacement valve, so that no additional net cost is incurred because of this change.

The FAA estimates that it will take approximately 1 work hour per airplane to accomplish a visual inspection of the service panel drain valve cap/door seal and seal mating surfaces, at an average labor rate of $60 per work hour. As with leak tests, certain airplanes will be required to be visually inspected as many as 15 times or as few as 3 times each year. Based on these figures, the cost impact of the required repetitive visual inspections is estimated to be between $180 and $900 per airplane, per year.

The required installation of the flush/fill line cap will take approximately 1 work hour per cap to accomplish, at an average labor rate of $60 per work hour. The cost of required parts will be $275 per cap. There is an average of 2.5 caps per airplane. Based on these figures, the cost impact of these requirements on U.S. operators is estimated to be $171,178, or $748 per airplane.

The seal replacements of the drain valves required by paragraph (a) of this AD will take approximately 2 work hours to accomplish, at an average labor cost of $60 per hour. The cost of required parts will be $200 per each seal change. Based on these figures, the cost impact on U.S. operators of these requirements is estimated to be $73,280, or $320 per airplane, per replacement.

The number of required work hours, as indicated above, is presented as if the accomplishment of the actions required in this AD were to be conducted as “stand alone” actions. However, in actual practice, these actions could be accomplished coincidentally or in combination with normally scheduled airplane inspections and other maintenance program tasks. Therefore, the actual number of necessary “additional” work hours will be minimal in many instances. Additionally, any costs associated with special airplane scheduling should be minimal.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The FAA recognizes that the obligation to maintain aircraft in an airworthy condition is vital, but sometimes expensive. Because ADs require specific actions to address specific unsafe conditions, they appear to impose costs that would not otherwise be borne by operators. However, because of the general obligation of operators to maintain aircraft in an airworthy condition, this appearance is deceptive. Attributing those costs solely to the issuance of this AD is unrealistic because, in the interest of maintaining safe aircraft, prudent operators would accomplish the required actions even if they were not required to do so by the AD.

A full cost-benefit analysis has not been accomplished for this AD. As a matter of law, in order to be airworthy, an aircraft must conform to its type design and be in a condition for safe operation. The type design is approved only after the FAA makes a determination that it complies with all applicable airworthiness requirements. In adopting and maintaining those requirements, the FAA has already made the determination that they establish a level of safety that is cost-beneficial. When the FAA, as in this AD, makes a finding of an unsafe condition, this means that the original cost-beneficial level of safety is no longer being achieved and that the required actions are necessary to restore that level of safety. Because this level of safety has already been determined to be cost-beneficial, a full cost-benefit analysis for this AD would be redundant and unnecessary.

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified FAA that an unsafe condition may exist on all BN-2, BN-2A, BN-2B, BN-2T, and BN2A MK. III series airplanes. The United Kingdom CAA reports five occurrences of failure of the oleo attachment bracket, part number (P/N) NB-40-0075. This bracket is the main attachment point for the main landing gear. The CAA determined that the cause for failure of these brackets is the current design of P/N NB-40-0075.

Cracked oleo attachment brackets, if not detected and corrected, could fail and detach from the main landing gear.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Pilatus Britten-Norman BN-2, BN-2A, BN-2B, BN-2T, and BN2A MK. III series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 23, 2001 (66 FR 58687). The NPRM proposed to require you to repetitively inspect the oleo attachment brackets, P/N NB-40-0075, for cracks and replace any cracked bracket found during any inspection. Accomplishment of the proposed actions as specified in the NPRM would be required in accordance with B-N Service Bulletin Number 273, Issue 2, dated January 12, 2000.

The FAA has determined that long-term continued operational safety would be better assured by design changes that remove the source of the problem rather than by repetitive inspections or other special procedures.

The manufacturer has changed the design of the oleo attachment bracket, P/N NB-40-0075, which is made of aluminum alloy. The newly designed oleo attachment bracket, P/N NB-40-0479, is made of steel. This design reduces the number of repetitive inspections. The newly designed part has been introduced in Issue 3 of B-N Service Bulletin Number SB 273.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

We did receive Issue 3 of B-N Service Bulletin Number SB 273. This service bulletin introduces the new design oleo attachment bracket described above. We have determined that the option to install this new design bracket should be incorporated into the AD. This installation will increase the time between repetitive inspection intervals (reduce the number of inspections).

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 126 airplanes in the U.S. registry.

We estimate the following costs to accomplish the inspections:

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified FAA that an unsafe condition may exist on BN-2, BN-2A, BN-2B, and BN-2T series airplanes. The United Kingdom CAA reports several instances where the inboard brackets of the elevator outboard hinge had loose rivets, structural damage, or cracks.

These inboard brackets of the elevator outboard hinge incorporate part number NB-31-0077.

Loose rivets, structural damage, or cracks in the inboard brackets of the elevator outboard hinge, if not detected and corrected, could cause the outboard elevator to become loose with a consequent reduction in elevator and airplane control.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Pilatus Britten-Norman Limited (Pilatus Britten-Norman) BN-2, BN-2A, BN-2B, and BN-2T series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 28, 2001 (66 FR 59378). The NPRM proposed to require you to repetitively inspect the inboard brackets of the elevator outboard hinge for loose rivets, structural damage, or cracks; and replace the hinge bracket prior to further flight or at a certain time, depending on whether loose rivets, structural damage, or cracks are found during an inspection. This replacement includes modifying this area and installing modified brackets, part number NB-31-0901.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

This AD requires you to replace/modify the hinge bracket at a certain time period if no discrepancies are found to increase the time period between inspections (reduce the number of repetitive inspections). BN Bulletin Number BN2/SB 259 and CAA AD Number 002-07-2000 do not specify this provision; they both specify this replacement/modification only if a suspect bracket is found during an inspection. This provision of incorporating the replacement/modification regardless of whether a suspect bracket is found is consistent with FAA's aging commuter aircraft policy, which briefly states that, when a modification exists that could eliminate or reduce the number of required critical inspections, the modification should be incorporated. This policy is based on our determination that reliance on critical repetitive inspections on airplanes utilized in commuter service carries an unnecessary safety risk when a design change exists that could eliminate or, in certain instances, reduce the number of those critical inspections.

The alternative to incorporating this replacement/modification would be to repetitively inspect this area every 100 hours time-in-service (TIS) for the life of the airplane instead of every 1,000 hours TIS.

We estimate that this AD affects 118 airplanes in the U.S. registry.

We estimate the following costs to accomplish each inspection:

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-11-27, amendment 39-11776 (65 FR 37029, June 13, 2000), which is applicable to certain Airbus Model A319, A320, and A321 series airplanes, was published in the Federal Register on September 4, 2001 (66 FR 46243). The action proposed to continue to require a one-time ultrasonic inspection to detect disbonding of the skin attachments at the stringers and spars of the vertical stabilizer, and repair, if necessary. For certain airplanes, the action also proposed to continue to require prior or concurrent modification of the vertical stabilizer to ensure proper reinforcement of its attachment to the skin. The action proposed to add repetitive ultrasonic inspections of the subject area, and repair, as necessary. It also proposed to add installation of fasteners to reinforce the bonds to the skin, which would terminate the repetitive inspections.

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

One commenter, the airplane manufacturer, requests that the FAA revise the proposed AD to remove the modification number from the applicability statement. The commenter notes that the referenced modification is not valid for production airplanes.

The FAA concurs with the commenter's request and has revised the applicability statement of this final rule accordingly. We find that this change does not expand the scope of the proposed AD but merely provides clarification by eliminating redundancy.

One commenter requests that we revise the proposed AD to refer to Airbus Service Bulletin A320-55-1028, Revision 02, dated July 26, 2000, as an acceptable source of service information for accomplishment of the installation of fasteners specified in paragraph (f) of the proposed AD. Paragraph (f) of the proposed AD refers to Airbus Service Bulletin A320-55-1028, Revision 03, dated November 2, 2000, as the appropriate source of service information for the installation of new fasteners. The commenter states that no substantive procedural changes were made from Revision 02 to Revision 03 of the service bulletin, and no additional work is necessary for airplanes on which Revision 02 was accomplished. Revision 03 merely clarifies recommendations for repeat inspections if the modification is only partially accomplished.

We concur with the commenter's request for the reasons specified by the commenter. Also, since the issuance of the proposed AD, Airbus has issued Service Bulletin A320-55-1028, Revision 04, dated April 13, 2001. The procedures in Revision 04 of the service bulletin are essentially the same as those in Revision 03. Therefore, we have revised paragraph (f) of this AD to specify that fastener installation must be accomplished in accordance with Airbus Service Bulletin A320-55-1028, Revision 04. Also, we have added a new note, Note 2, to this final rule and renumbered subsequent notes accordingly, to give credit for accomplishment of the installation of fasteners prior to the effective date of this AD in accordance with Airbus Service Bulletin A320-55-1028, Revision 02 (based on the commenter's request), or Revision 03. We have also revised the applicability statement of this final rule to exclude airplanes on which Airbus Service Bulletin A320-55-1028, Revision 02, Revision 03, or Revision 04, has been accomplished, from the applicability of this AD. (The applicability statement of the proposed AD states that airplanes on which Airbus Service Bulletin A320-55-1028, Revision 03, has been accomplished are not subject to this AD.)

The commenter requests that we revise the compliance time of paragraph (f) of the proposed AD to refer to “5 years from the ‘entry in service’ of the airplane” instead of “5 years after the date of manufacture of the airplane.” The commenter points out that the date of manufacture is the date of the first flight of the airplane, whereas the date of “entry into service” is the date of delivery of the airplane. The difference between these dates could be one month or more. The commenter recommends that we make this change to avoid operator questions.

We do not concur. For clarification, we define the “date of manufacture” as the date of issuance of the Certificate of Airworthiness. We find that this constitutes a definitive date when all of the manufacturing processes are completed. We have determined that this date should be readily discernible by operators, and no change to the final rule is necessary in this regard.

In addition to the changes described previously, several typographical errors have been corrected in this final rule.

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

There are approximately 23 Model A319, A320, and A321 series airplanes of U.S. registry that will be affected by this AD.

The repetitive inspections in this AD will take approximately 3 to 7 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact on U.S. operators of the repetitive inspections required by this AD is estimated to be $4,140 to $9,660, or $180 to $420 per airplane, per inspection cycle.

The installation of fasteners in this AD will take approximately 5 to 480 work hours per airplane to accomplish, depending upon the configuration of the airplane, at an average labor rate of $60 per work hour. Required parts will be provided by the airplane manufacturer at no cost to operators. Based on these figures, the cost impact on U.S. operators of the installation required in this AD is estimated to be $6,900 to $662,400, or $300 to $28,800 per airplane.

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

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

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

This final rule is based on the FHWA's notice of proposed rulemaking (NPRM), FHWA Docket No. FHWA-2001-10077, Design Standards for Highways, at 66 FR 48103 (September 18, 2001). All comments received in response to the NPRM have been considered in adopting this final rule. For discussion of comments, see the section entitled “Discussion of Comments” later in this final rule.

This document, the NPRM, and all comments received may be viewed online through the Document Management System (DMS) at: http://dms.dot.gov. The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the web site.

An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's Web page at: http://www.access.gpo.gov.

The current design standards are on file at the Office of the Federal Register in Washington, DC, and are available for inspection and copying at the FHWA Washington, DC, Headquarters and field offices as prescribed in 49 CFR part 7. Copies of the current AASHTO publications are also available for purchase from AASHTO by telephone (800) 231-3475, facsimile (800) 525-5562, mail AASHTO, P.O. Box 96716, Washington, DC 20090-6716 or at its Web site at www.transportation.org.

The standards, policies, and standard specifications that have been approved by the FHWA for application on all construction and reconstruction projects on the NHS are incorporated by reference in 23 CFR part 625. The current document specified in § 625.4(a)(1) is the 1994 edition of “A Policy on Geometric Design of Highways and Streets” (Policy). 1 The AASHTO recently revised the Policy and issued the 2001 edition which the FHWA is adopting as its policy for design standards for all construction and reconstruction projects on the NHS. The primary reason for development of the new document was to update the previous Policy to incorporate the latest design criteria. See “Summary of Changes” below for a description of the changes made in the 2001 edition.

The AASHTO is an organization which represents 52 State highway and transportation agencies (including the District of Columbia and Puerto Rico). Its members consist of the duly constituted heads and other chief officials of those agencies. The Secretary of Transportation is an ex officio member, and U.S. DOT officials participate in various AASHTO activities as nonvoting representatives. Among other functions, the AASHTO develops and issues standards, specifications, policies, guides and related materials for use by the States for highway projects. Many of the standards, policies, and standard specifications approved by the FHWA and incorporated into 23 CFR part 625 were developed and issued by the AASHTO. Revisions to such documents of the AASHTO are independently reviewed and adopted by the FHWA before they are applied to NHS projects.

The National Highway System (NHS) was established by the National Highway System Designation Act of 1995, Public Law 104-59, Nov. 28, 1995, 109 Stat. 568. The NHS includes the Interstate System and other principal arterials serving major travel destinations and transportation needs, connectors to major transportation terminals, the Strategic Highway Network and connectors, and high priority corridors identified by law.

Generally, the criteria in the functional chapters of the Policy on local roads and streets and collectors (Chapters 5 and 6) are not applicable to projects on the NHS. However, if highway segments functionally classified as less than principal arterials are incorporated in the NHS by virtue of being Strategic Highway Network Connectors or Intermodal Connectors, the standards used may be those appropriate for the functional classification of the segment, taking into account the type of traffic using the segment.

Although the standards contained in the Policy apply to the Interstate System, additional guidance applicable to the design of highways on the Interstate System is included in another AASHTO publication, “A Policy on Design Standards—Interstate System.”  2 The latest edition of this publication is dated July 1991; no revisions to this document are proposed at this time.

The changes in the 2001 Policy were developed as the result of formal research projects and information contributed by the AASHTO and the FHWA staff experts. The changes included such items as the criteria for stopping sight distance, height of eye and height of object for measuring sight distance, transition design controls, and intersection sight distance. The NPRM cited earlier in this section should be consulted for a more complete description of the changes.

Interested persons were invited to participate in the development of this final rule by submitting written or electronic comments on the NPRM to FHWA Docket No. FHWA-2001-10077 on or before November 19, 2001. The FHWA received two comments to the docket. Both comments were from State DOT's. One commenter feels that “A Policy on Design Standards—Interstate System” (Interstate Policy) should be eliminated so that the engineer/designer only has to refer to one document. As mentioned under the caption SUPPLEMENTARY INFORMATION although the standards contained in the Policy apply to the Interstate System, additional standards applicable to the design of highways on the Interstate System are included separately in the Interstate Policy. The FHWA believes these additional standards are necessary and that the Interstate Policy cannot be eliminated. However, in the future, the two publications could be merged by including the standards in the Interstate Policy under a separate heading or chapter in the Policy. Both the FHWA and this commenter will be a party to future revisions of the Policy so inclusion of the Interstate Policy can be addressed at that time. The other commenter agreed with the changes and recommended that the FHWA adopt the new Policy.

In response to the FHWA solicitation of public comment on this action, we received two comments. These comments have been considered in evaluating whether any change to this action is needed. The FHWA determines that no change is required.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. The economic impact of this rulemaking will be minimal. Although the new Policy has been revised to incorporate the latest research, the basic criteria remain essentially the same. These changes will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that this action will not have a significant economic impact on a substantial number of small entities. As stated above, although the new Policy has been revised to incorporate the latest research, the basic criteria remain essentially the same. For these reasons, the FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531 et seq ).

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

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

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

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and the FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

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 Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning Montana's program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

By letters dated February 1, 1995, and February 28, 1995, Montana sent us an amendment to its program (Administrative Record Nos. MT-12-01 and MT-12-05) under SMCRA (30 U.S.C. 1201 et seq. ). Montana sent the amendment in response to letters dated July 2, 1985, May 11, 1989, and March 29, 1990 (Administrative Record Nos. MT-60-01, MT-60-04, and MT-60-07) that we sent to Montana in accordance with 30 CFR 732.17(c); in response to the required program amendments at 30 CFR 926.16(b), (c), (d), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), (e)(7), (e)(8), (f), (h), (i), and (j); and at its own initiative. Montana proposed changes to: ARM 26.4.301, definitions; ARM 26.4.303, legal, financial, compliance, and related information; ARM 26.4.304, baseline information: environmental resources; ARM 26.4.308, operations plan; ARM 26.4.314, plan for protection of the hydrologic balance; ARM 26.4.321, transportation facilities plan; ARM 26.4.404, review of application; ARM 26.4.405, findings and notice of decision; ARM 26.4.405A, improvidently issued permits: general requirements; ARM 26.4.405B, improvidently issued permits: revocation; ARM 26.4.407, conditions of permit; ARM 26.4.410, permit renewal; ARM 26.4.501A, final grading requirements; ARM 26.4.505, burial and treatment of waste materials; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.524, signs and markers; ARM 26.4.601, general requirements for road and railroad loop construction; ARM 26.4.602, location of roads and railroad loops; ARM 26.4.603, embankments; ARM 26.4.605, hydrologic impacts of roads and railroad loops; ARM 26.4.623, blasting schedule; ARM 26.4.633, water quality performance standards; ARM 26.4.634, reclamation of drainages; ARM 26.4.638, sediment control measures; ARM 26.4.639, sedimentation ponds and other treatment facilities; ARM 26.4.642, permanent and temporary impoundments; ARM 26.4.645, groundwater monitoring; ARM 26.4.646, surface water monitoring; ARM 26.4.702, redistribution and stockpiling of soil; ARM 26.4.711, establishment of vegetation; ARM 26.4.721, eradication of rills and gullies; ARM 26.4.724, use of revegetation comparison standards; ARM 26.4.726, vegetation production, cover, diversity, density, and utility requirements; ARM 26.4.821, alternate reclamation: submission of plan; ARM 26.4.825, alternate reclamation: alternate revegetation; ARM 26.4.924, disposal of underground development waste: general requirements; ARM 26.4.927, disposal of underground development waste: durable rock fills; ARM 26.4.930, placement and disposal of coal processing waste: special application requirements; ARM 26.4.932, disposal of coal processing waste; ARM 26.4.1001, application requirements; ARM 26.4.1001A, notice of intent to prospect; ARM 26.4.1002, information and monthly reports; ARM 26.4.1005, drill holes; ARM 26.4.1006, roads and other transportation facilities; ARM 26.4.1007, grading, soil salvage, storage, and redistribution; ARM 26.4.1009, diversions; ARM 26.4.1011, hydrologic balance; ARM 26.4.1014, test pits: application requirements, review procedures, bonding, and additional performance standards; ARM 26.4.1116, bonding: criteria and schedule for release of bond; ARM 26.4.1116A, reassertion of jurisdiction; ARM 26.4.1141, designation of lands unsuitable: definition; ARM 26.4.1206, notices, orders of abatement and cessation orders: issuance and service; and ARM 26.4.1212, point system for civil penalties and waivers.

We announced receipt of the proposed amendment in the March 15, 1995, Federal Register (60 FR 13932; Administrative Record No. MT-12-12). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on April 14, 1995. We received responses from six federal agencies and one citizen group.

During our review of the amendment, we identified the rules requiring clarification prior to making an evaluation of the proposed revisions. Those rules requiring clarification were: ARM 26.4.301(78), the definition of “owned or controlled;” ARM 26.4.303, legal, financial, compliance, and related information; ARM 26.4.304, baseline information: environmental resources; ARM 26.4.314, plan for the protection of the hydrologic balance; ARM 26.4.404, review of application; ARM 26.4.407, conditions of a permit; ARM 26.4.410, permit renewal; ARM 26.4.505 and 26.4.510, burial and treatment of waste materials and disposal of offsite-generated waste and fly ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.603 and 26.4.639, sedimentation ponds and other treatment facilities; ARM 26.4.645 and 26.4.646, groundwater and surface water monitoring; ARM 26.4.721, eradication of rills and gullies; ARM 26.4.821, alternate reclamation: submission of plan; ARM 26.4.924, disposal of underground development waste: general requirements; ARM 26.4.927, disposal of underground development waste: durable rock fills; ARM 26.4.1001, permit requirement; ARM 26.4.1001A, notice of intent to prospect; ARM 26.4.1006, roads and other transportation facilities; ARM 26.4.1009, diversions; and 26.4.1014, prospecting.

We notified Montana of those rules requiring clarification by letter dated October 17, 1995 (Administrative Record No. MT-12-16). Montana responded with further explanation in a letter dated February 6, 1996 (Administrative Record No. MT-12-19). Following receipt of Montana's February 6, 1996, letter, we identified concerns with ARM 26.4.304, baseline information: environmental resources; ARM 26.4.404, review of application; ARM 26.4.505 and 26.4.510, burial and treatment of waste materials and disposal of off-site generated waste and fly ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.639, sediment ponds and other treatment facilities; ARM 26.4.821, alternate reclamation; ARM 26.4.924 and 26.4.927, disposal of underground development waste; and ARM 26.4.1014, prospecting. We notified Montana of these concerns by letter dated July 10, 1997 (Administrative Record No. MT-12-20).

Meanwhile, at the same time we were reviewing this amendment, Montana made subsequent changes to some of the rules contained in this amendment and submitted them in another amendment dated March 5, 1996 (SPATS No. MT-018-FOR; Administrative Record No. MT-15-01). Those rules were: ARM 26.4.410, permit renewal, ARM 26.4.1001, prospecting permit requirement; and ARM 26.4.1001A, notice of intent to prospect. OSM and Montana subsequently decided to withdraw the prospecting and permit renewal rules from SPATS No. MT-003-FOR and consider them in SPATS No. MT-018-FOR (Administrative Record Nos. MT-12-21 and MT-15-14). These withdrawn rules addressed the required program amendments at 30 CFR 926.16(f), (h), (i), and (j).

Concerning this amendment, Montana responded by letter dated July 17, 2000 (Administrative Record No. MT-12-23), that it would not submit further revisions to this amendment. Montana requested that OSM proceed with the final rule Federal Register notice. Montana stated that it would address the existing deficiencies in this amendment in a new submission. OSM then proceeded writing the final rule Federal Register notice on SPATS No. MT-003-FOR.

However, during the writing of the final rule, OSM decided to request a meeting with Montana to discuss the unresolved issues in MT-003-FOR. The meeting was held at the Montana Department of Environmental Quality (DEQ), Helena, Montana, on February 27, 2001. During the meeting, OSM and the Montana DEQ decided that some issues were, in fact, resolvable due to a re-interpretation of Montana's responses and/or a subsequent revision of Montana's rules.

As a result of the February 2001, meeting, Montana submitted revisions and/or additional explanatory information by letter dated May 15, 2001 (Administrative Record No. MT-12-25). Montana submitted additional explanatory information concerning the lack of acid-forming materials in the Montana coal fields to address the issue with ARM 26.4.304(6)(b)(ii)(B). Montana proposed editorial changes to ARM 26.4.407(4). Montana proposed new language at ARM 26.4.505(5) to prohibit acid, acid-forming, toxic, or toxic-forming wastes from being used in an impoundment. Montana proposed new language at ARM 26.4.505(7) to provide that the same notification requirements concerning potential hazards at waste disposal sites also pertain to temporary waste impoundments. Montana proposed new language at ARM 26.4.639 to address the construction of a single spillway and to state that an excavation requires no spillway. Montana proposed to delete the subsection at ARM 26.4.924(15) which OSM disapproved in the August 19, 1992, Federal Register notice, and to delete cross-reference to it at ARM 26.4.927(3)(a). This deletion is a partial response to a required program amendment which OSM put on the Montana program on August 19, 1992 at 30 CFR 926.16(e)(9).

We announced receipt of the proposed amendment in the June 1, 2001, Federal Register (66 FR 29741). In the same document, we reopened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. MT-12-28). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on July 2, 2001. We received comments from two Federal agencies.

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

Montana proposed minor wording, editorial, punctuation, grammatical, and recodification changes to the following previously-approved rules.

26.4.301, ARM, subsections (79) through (119), (121) through (133), and (135) through (137), (30 CFR 701.5), definitions;

26.4.407, ARM, subsections (1) and (2), (30 CFR 773.17), conditions of permit;

26.4.601, ARM, subsection (7), (30 CFR 816.150/817.150), general requirements for road and railroad loop construction;

26.4.639, ARM, subsection (18)(c), (30 CFR 816.49/817.49), sedimentation ponds and other treatment facilities;

26.4.711, ARM, subsections (2), (3), (4), and (5), (30 CFR 816.111/817.111 and 816.116/817.116), establishment of vegetation;

26.4.924, ARM, subsections (5), (10) through (14), (16), (17), (18), and (20); (30 CFR 816.71/817.71, 816.81/817.81, and 816.83/817.83), disposal of underground development waste: general requirements;

26.4.1005, ARM, subsection (2); (30 CFR 815.15(i) and 816.41(a)/817.41(a)), drill holes;

26.4.1006, ARM, subsection (1); (30 CFR 816.150/817.150, 816.180/817.180, and 816.181/817.181), roads and other transportation facilities;

26.4.1007, ARM subsection (2); (30 CFR 815.15(d)), grading, soil salvage, storage, and redistribution; and

26.4.1009, ARM, subsection (1); (30 CFR 816.43/817.43), diversions.

Because these changes are minor and nonsubstantive, we find that they will not make Montana's rules less effective than the corresponding Federal regulations.

Montana proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations.

26.4.304, ARM, subsection (6)(a)(iii), (30 CFR 780.21/784.14), baseline information: environmental resources;

26.4.308, ARM, subsection (2), (30 CFR 780.11/784.11 and 780.37/784.24), operations plan;

26.4.314, ARM, subsection (3), (SMCRA section 510(b) and 30 CFR 780.21/784.14), plan for protection of the hydrologic balance;

26.4.405, ARM, subsections (6) and (8), (30 CFR 773.15), findings and notice of decision;

26.4.501A, ARM, subsection (3)(a), (30 CFR 816.101/817.101), final grading requirements;

26.4.524, ARM, subsection (2), (30 CFR 816.11/817.11), signs and markers;

26.4.601, ARM, subsection (5), (30 CFR 816.151(a)(1)/817.151(a)(1)), general requirements for road and railroad loop construction;

26.4.602, ARM, subsection (2), (30 CFR 816.151/817.151 and 30 CFR 780.37/784.24), location of roads and railroad loops;

26.4.603, ARM, Introduction and subsection (9), (30 CFR 816.49/817.49), embankments;

26.4.605, ARM, subsection (3)(a)(i), (30 CFR 816.151/817.151), hydrologic impact of roads and railroad loops;

26.4.623, ARM, subsection (2)(b)(iii), (30 CFR 816.64/817.64), blasting schedule;

26.4.633, ARM, subsection (2), (30 CFR 816.46/817.46), water quality performance standards;

26.4.634, ARM, subsections (1) and (2), (30 CFR 816.102 /

817.102), reclamation of drainages;

26.4.638, ARM, subsection (2)(a), (30 CFR 816.45(b)(1)/817.45(b)(1)), sediment control measures;

26.4.639, ARM, subsections (1), (10)(c), and (18), Introduction, (30 CFR 816.46(b)(4) and (c)(2)/817.46(b)(4) and (c)(2), and 30 CFR 816.49(a)(2) and (a)(11)/817.49(a)(2) and (a)(11)), sedimentation ponds and other treatment facilities;

26.4.642, ARM, subsections (5) and (8), (30 CFR 816.49/817.49 and 816.84/817.84), permanent and temporary impoundments;

26.4.702, ARM, subsection (4), (30 CFR 780.23(a)(2)/784.15(a)(2)), redistribution and stockpiling of soil;

26.4.711, ARM, subsection (6), (30 CFR 816.116/817.116), establishment of vegetation;

26.4.927, ARM, subsection (2)(c), (30 CFR 816.71/817.73), disposal of underground development waste: durable rock fills;

26.4.932, ARM, subsection (8)(a)(ii), (30 CFR 816.81(a)/817.81(a) and 816.83/817.83), disposal of coal processing waste;

26.4.1002, ARM, subsections (1) and (2), (30 CFR 815.1 and 816.10/817.10), information and monthly reports;

26.4.1005, ARM, subsection (3), (30 CFR 815.15(g)), drill holes;

26.4.1006, ARM, subsections (2) through (4), (30 CFR 815.15, 816.150/817.150, 816.180/817.180 and 816.181/817.181), roads and other transportation facilities;

26.4.1007, ARM, subsection (1), (30 CFR 815.15(c)), grading, soil salvage, storage, and redistribution;

26.4.1009, ARM, subsection (2), (30 CFR 816.43/817.43), diversions;

26.4.1011, ARM, subsection (1), (30 CFR 772.11, 772.12, 772.13 and 815.15), hydrologic balance;

26.4.1116, ARM, subsection (7)(c), (30 CFR 800.40), bonding: criteria and schedule for release of bond;

26.4.1116A, ARM, subsections (1) and (2), (30 CFR 700.11), reassertion of jurisdiction;

26.4.1141, ARM, subsection (3), (30 CFR 762.5), designation of lands unsuitable: definition;

26.4.1212, ARM, subsection (1), (30 CFR 845.13(b)(1)), point system for civil penalties and waivers.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

Montana proposed numerous revisions to its regulatory program concerning ownership and control. These revisions were submitted in response to two Part 732 letters sent to Montana by OSM on May 11, 1989 and January 13, 1997 (Administrative Record Nos. MT-60-04 and MT-60-09). Many of these revisions were found to be no less effective than the corresponding Federal regulations. However, during the evaluation of SPATS No. MT-003-FOR, OSM again revised its ownership and control regulations in response to recent legal challenges contesting the validity of OSM's regulations. The final rule Federal Register notice concerning OSM's revised regulations was published on December 19, 2000 (65 FR 79582). In the future, OSM will send a current Part 732 letter to all States, according to the requirements of 30 CFR 732.17(d), to advise the States of ownership and control revisions which they need to make to their State regulatory program. Therefore, at this time, OSM defers on Montana's proposed revisions concerning ownership and control. The sections of the Administrative Rules of Montana (ARM) where a decision is being deferred, are: ARM 26.4.301(78); 26.4.303 Introduction, (1), (6) through (8), (13) through (15), (20) through (24); 26.4.404(7) through (10); 26.4.405(5); 26.4.405A; 26.4.405B; and 26.4.1206(1).

OSM placed a required program amendment (30 CFR 926.16(b)) on Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to revise the definition of “test pit” to eliminate the phrase “or for the purpose of developing a test market.” OSM placed the required program amendment on the Montana program as the Federal counterpart regulations for coal exploration at 30 CFR 772.14(b) allow for the extraction of more than 250 tons of coal under an exploration permit if the coal is intended for testing purposes only. There is no Federal provision for using coal extracted under an exploration permit for developing a market.

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana proposed a revision at ARM 26.4.301(120) to revise the definition of “test pit” to delete the phrase “or for the purpose of developing a test market.” Therefore, the Director finds the Montana revised rule to be no less effective than the Federal requirement and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(b).

Montana proposed to move the requirements for groundwater baseline information from ARM 26.4.304(5) to revised ARM 26.4.304(6)(a)(ii), and to revise the surface water baseline information requirements at ARM 26.4.304(6)(b)(ii)(B). Montana proposed to delete from ARM 26.4.304(6)(a)(ii) and 26.4.304(6)(b)(ii)(B), the need to provide baseline information for “total iron and total manganese,” and to add the requirement that the applicant provide baseline information for both surface and groundwater concerning “concentrations of dissolved metals as prescribed by the department.” In addition, Montana proposed to delete from ARM 26.4.304(6)(b)(ii)(B) the requirement for surface water baseline information concerning acidity and alkalinity.

The Federal regulations at 30 CFR 780.21(b)(1) and (2)/784.14(b)(1) and (2) concerning baseline information for surface water and groundwater information require: (1) Total iron and total manganese, and (2) acidity and alkalinity, if there is a potential for acid drainage from the proposed mining operation. The Federal regulation at 30 CFR 732.15(a) requires the States to provide program elements that are in accordance with the provisions of SMCRA and consistent with the requirements of the Federal regulations.

In the February 6, 1996, response (Administrative Record No. MT-12-18), Montana stated that OSM's requirements for total iron, total manganese, and acidity analyses are based upon eastern U.S. problems and do not typically relate to areas where coal mining operations currently exist in Montana with a predominance of alkaline conditions. OSM had requested in the October 17, 1995, and July 10, 1997, letters that Montana provide documentation supporting Montana's characterization of alkaline coal fields, such as a compilation of historic surface-water and overburden sampling information from coal mining permits, or geological reports of analyses conducted over the coal mining regions of Montana in order to approve the proposed deletion of total iron, total manganese, acidity and alkalinity as parameters for surface water baseline information (Administrative Record Nos. MT-12-16 and MT-12-20).

Montana did not initially provide such documentation but responded by letter dated February 6, 1996, that: (1) OSM's requirements for iron, manganese, alkalinity and acidity are based upon eastern U.S. problems and Montana conditions are alkaline; (2) Montana has the authority at ARM 26.4.304(5)(a)(ii) and (b)(ii)(B), and ARM 26.4.304(5)(d) to request additional analyses as needed; (3) Montana's Water Resource Guidelines, currently being revised, provide guidance for water analyses; and (4) OSM could impose additional analyses on Federal lands permits when they are reviewed, if OSM believes additional water analyses are needed (Administrative Record No. MT-12-19).

Following the meeting in Helena, Montana, on February 27, 2001, Montana submitted a letter dated May 15, 2001, containing surface water quality data documenting alkaline conditions at five mine areas in Montana (Administrative Record No. MT-12-25). This documentation is representative of surface conditions in Montana. With this information, OSM can approve Montana's proposed deletions to groundwater baseline information and surface water baseline information, as no less effective than the Federal regulations. The Director approves these revisions.

At ARM 26.4.314(5), Montana proposed to delete the word “probable” from the requirement to provide an assessment of the “probable cumulative hydrological impacts.” As both SMCRA section 510(b)(3) and 30 CFR 780.21(g)(1)/784.14(g)(1) require that an applicant provide an assessment of the “probable cumulative hydrologic impacts” of the proposed operation, OSM requested that Montana explain the deletion of the term “probable.” Montana responded that the term “probable cumulative hydrologic impacts” is undefined in the Montana rules, while “cumulative hydrologic impacts” is defined. Montana further stated that “cumulative hydrologic impacts” in the Montana program includes “expected” impacts, which has the same connotation as “probable.” With this explanation, the Director approves the proposed revision to ARM 26.4.314(5) as no less effective than the Federal regulation and no less stringent than SMCRA.

OSM placed required program amendments (30 CFR 926.16(e)(3) and (e)(4)) on Montana in the August 19, 1992, Federal Register notice (57 FR 37436). The required program amendment at 30 CFR 926.16(e)(3) required Montana to modify its program to specify certification content requirements no less effective than 30 CFR 780.37(b)/784.24(b). The required program amendment at 30 CFR 926.16(e)(4) required Montana to incorporate application requirements no less effective than 30 CFR 780.37(a)(2), (3), and (6)/784.24(a)(2), (3), and (6). OSM placed the required program amendments on the Montana program as the revisions proposed in the June 19, 1990, submittal (Administrative Record No. MT-7-01) did not address these Federal counterpart provisions.

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana subsequently proposed rule revisions at ARM 26.4.321 which addressed the certification content requirements and application requirements for the mining operations and reclamation plan portions of applications for permits for both surface and underground mining activities. OSM found that these Montana ARM revisions addressed earlier programmatic deficiencies identified at 30 CFR 926.16(e)(3) and (e)(4). Therefore, the Director finds the Montana revised rules to be no less effective than the Federal requirements and approves the proposed language. The Director removes the required program amendments at 30 CFR 926.16(e)(3) and (e)(4).

OSM placed a required program amendment (30 CFR 926.16(c)) on Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to revise ARM 26.4.404(5)(b) to require that a determination of effects is completed for all properties listed on or eligible for listing on the National Register of Historic Properties (NRHP). OSM placed the required program amendment on the Montana program as the proposed revision to ARM 26.4.404(5)(b) applied to “all listed eligible cultural resource sites” rather than to “properties listed on or eligible for listing on the NRHP,” as required by the Federal regulation at 30 CFR 773.15(c)(11).

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana revised ARM 26.4.404(5)(b) to read “all listed or eligible cultural resource sites in accordance with 30 CFR 800.” 36 CFR 800 applies to the Advisory Council on Historic Preservation and properties listed on or eligible for listing on the NRHP. Therefore, the Director finds the Montana revised rule to be no less effective than the Federal regulation and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(c).

OSM placed a required program amendment (30 CFR 926.16(d)) on Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to change the cross-reference at ARM 26.4.405(6)(l) to ARM 26.4.1302, which governs the use of existing structures, rather than deleted rule ARM 26.4.309. In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana proposed a rule revision correcting the incorrect cross-reference to ARM 26.4.1302. Therefore, the Director finds the revised rule at ARM 26.4.405(6)(l) to be no less effective than the Federal requirement and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(d).

At ARM 26.4.407(4), Montana proposed to require as a condition of each permit that a permittee, within 30 days of issuance of a cessation order under the Federal or State program, must provide the department with certain specified information except “where a state cessation order is granted and remains in effect.” The Federal counterpart at 30 CFR 773.17(i) is similar to Montana's proposal except that the Federal provision allows an exception to the applicable requirement only “where a stay of a cessation order has been granted and remains in effect.”

In response to OSM's comment in the formal issue letter dated October 17, 1995 (Administrative Record No. MT-12-16) that Montana needed to revise ARM 26.4.407(4) to allow an exception to the requirements of the rule only where “a stay of a cessation order has been granted and is in effect,” Montana stated that the typographical error would be corrected (Administrative Record No. MT-12-19). By letter dated May 25, 2001, Montana submitted a revision to OSM which corrected the typographical error at ARM 26.4.407(4) to read “a stay of the cessation order has been granted” (Administrative Record No. MT-12-25). With this information, the Director finds ARM 26.4.407(4) to be no less effective than the Federal counterpart and approves the revision.

Montana proposed revisions at ARM 26.4.505 in response to a requirement which OSM codified at 30 CFR 926.16(e)(2) to incorporate requirements for the disposal of waste, including coal mine waste on strip mines, in a manner no less effective than the requirements at 30 CFR 816.102(e)/817.102(e) and 816.81/817.81 through 816.84/817.84. OSM placed the required program amendment on the Montana program as the revised definition of “waste” at ARM 26.4.301(132), now (133), included coal processing waste to be disposed of on surface mining operations which are governed by ARM 26.4.505 and 26.4.510. However, ARM 26.4.505 and 26.4.510 regulate surface mining operations; coal processing waste is not addressed at these rules. Existing language and proposed revisions at ARM 26.4.505(3) and (4) prohibit waste disposal in the construction of embankments for impoundments and in a waste disposal structure located on the surface of the ground. Therefore, the requirements of 30 CFR 816.84(a)/817.84(a) pertaining to impounding structures constructed of coal mine waste and the requirements of 30 CFR 816.83/817.83 for disposal of coal mine waste in refuse piles, are not addressed in the Montana program at 26.4.505 and 26.4.510. The Federal regulations require that any disposal of coal mine waste, whether in impounding structures or in excavated areas of strip mines, must meet the general requirements of 30 CFR 816.102(e)/817.102(e) and 816.81/817.81.

OSM told Montana in its October 17, 1995, letter (Administrative Record No. MT-12-16) that in order to be no less effective than the Federal regulations, Montana must revise ARM 26.4.505 to include the following requirements: (1) Waste should be hauled or conveyed and placed in controlled manner to achieve the purposes itemized in 30 CFR 816.81(a)(1) through (5)/817.81(a)(1) through (5); (2) design and design certification, and foundation and abutment stability under all conditions of construction, should be in accordance with 30 CFR 816.81(c)/817.81(c); and (3) foundation investigations should be in accordance with 30 CFR 816.81(d)/817.81(d).

Montana responded in a letter dated February 6, 1996 (Administrative Record No. MT-12-19), stating that waste disposal in structures outside of mine excavations is prohibited at surface mines in Montana's program, and that Montana has the necessary requirements for underground mines. Montana has no coal preparation plants. Therefore, the disposal of coal processing waste in structures outside of mine excavations does not need to be addressed in the Montana program. Montana desires to dispose of coal processing waste in excavation pits.

There are no Federal regulations prohibiting the disposal of coal processing waste in excavation pits. Therefore, the Montana proposed rules are not inconsistent with the Federal regulations and the Director approves the proposed Montana revisions at ARM 26.4.505 and 26.4.510. The Director removes the required program amendment at 30 CFR 926.26(e)(2).

During the review of proposed ARM 26.4.505(5), OSM identified deficiencies relating to the lack of: (1) a requirement that any temporary impoundment of waste which includes coal mine waste must meet the general requirements of ARM 26.4.505, in addition to those specified in paragraph (5); (2) a requirement for adequate protection against erosion and corrosion for outlet works; (3) a requirement that the diversion of runoff from above or off of the impounding structure be in accordance with 30 CFR 816.84(d)/817.84(d); and (4) a requirement for design and performance criteria for removal of 90 percent of the water stored during the design event within the 10 day period following the event in accordance with 30 CFR 816.84(e) and (f)/817.84(e) and (f) (Administrative Record No. MT-12-16).

Montana responded to OSM's deficiency list by: (1) Stating that paragraph (2) also pertains to coal waste impoundments and that Montana will add another subsection to (5) indicating that acid, toxic, acid-forming, and toxic-forming wastes may not be included in temporary waste impoundments; (2) stating that Montana will add the term “outlet works” to (5)(c); and (3) referencing sections in the State program which correspond to 30 CFR 816.84(d), (e), and (f)/817.84(d), (e), and (f) (Administrative Record No. MT-12-19).

OSM responded to Montana by letter dated July 10, 1997, stating that: (1) ARM 26.4.505(7) needed to be cross-referenced under ARM 26.4.505(5) to assure that emergency procedures would apply to temporary impoundments; and (2) Montana's proposal to rewrite ARM 26.4.505 to prohibit the inclusion of acid- and/or toxic-forming materials in temporary impoundments would assure that its program is no less effective than the Federal regulations.

Following OSM's meeting with Montana on February 27, 2001, Montana submitted the proposed revisions at ARM 26.4.505(5)(c) through (5)(e) and (7) to OSM by letter dated May 15, 2001 (Administrative Record No. MT-12-25). The proposed revisions assure that emergency procedures would apply to temporary impoundments and would prohibit the inclusion of acid- and/or toxic-forming materials in temporary impoundments. The Director, therefore, finds that the deficiencies at ARM 26.4.505 have been addressed and Montana's proposed revisions are no less effective than the Federal counterpart regulations. The Director approves revised ARM 26.4.505.

During the review of the burial and treatment of waste materials (at Finding No. 11a above), OSM raised an issue concerning the impact of the revisions at ARM 26.4.505. ARM 26.4.505 is cross-referenced at ARM 26.4.510(1) for the disposal of offsite-generated waste and fly ash. OSM's concern was that the requirements of 30 CFR 816.81(b)/817.81(b), which require that coal mine waste material from activities located outside a permit area may be disposed of in the permit area—if it is done with the approval of the regulatory authority—based upon a showing that the disposal would be in accordance with the standards of 30 CFR 816.81(b)/817.81(b), would not be met. However, with the resolution of Finding No. 11a above, OSM believes that the concerns with ARM 26.4.505 and 26.4.510 are resolved as they relate to the disposal of coal mine waste material from activities located outside a permit area.

Montana proposed to delete at ARM 26.4.519A the requirement that all highwalls and depressions in thick overburden must be eliminated with spoil and suitable waste materials unless otherwise approved by the Montana DEQ in accordance with ARM 26.4.313(3) and 26.4.821 through 26.4.824. The Federal counterpart requirement to eliminate highwalls and depressions is contained at 30 CFR 816.102(a)(2)/817.102(a)(2). The deleted Montana cross-references concern the reclamation plan and Montana's programmatic allowance for alternate reclamation.

The general programmatic requirement to eliminate all highwalls and depressions used to be contained in the Montana program at ARM 26.4.501A(1). However, in 1999, this programmatic requirement was deleted from the Montana program by the State legislature. OSM has not received the revised Montana rules to evaluate if this requirement is contained elsewhere in the revised program, particularly in light of the proposed deletion at ARM 26.4.519A. Therefore, at this time, the Director defers on the proposed deletion at ARM 26.4.519A until a current rulemaking is submitted by Montana and evaluated by OSM.

Montana proposed at ARM 26.4.639(18) to delete the 1.2 seismic safety factor and 1.5 static safety factor requirements for sedimentation ponds that meet the criteria of 30 CFR 77.216(a). At ARM 26.4.603(9), Montana proposed to add 1.2 seismic safety factor and 1.5 static safety factor requirements for the construction of all embankments. The Federal requirement at 30 CFR 816.49(a)(3)(i)/817.49(a)(3)(i) specifies that for all temporary or permanent impoundments (including sedimentation ponds) that meet the criteria of 30 CFR 77.216(a), a 1.2 seismic safety factor and 1.5 static safety factor must be achieved.

Because ARM 26.4.642(2) references ARM 26.4.603, and because a sedimentation pond is defined as an “impoundment” in ARM 26.4.301, OSM asked Montana if ARM 26.4.603(9) would apply to all sedimentation ponds and impoundments, regardless of size and temporal nature. In the February 6, 1996, letter, Montana responded that OSM's interpretation was correct in that ARM 26.4.603(9) applies to all sedimentation ponds regardless of size or nature (Administrative Record No. MT-12-19). With this explanation, the Director approves the revisions at ARM 26.4.639(18)(b) and 26.4.603(9) as no less effective than the Federal regulations.

At ARM 26.4.639(10)(a), Montana proposed to allow sedimentation ponds to be constructed with either a “single spillway” or a combination of principal and emergency spillways. The counterpart Federal regulation at 30 CFR 816.46(c)(2)(i)/817.46(c)(2)(i) allows for a single open-channel spillway if configured as specified at 30 CFR 816.49(a)(9)/817.49(a)(9). The Federal regulation also provides that the regulatory authority may approve a single open-channel spillway that is of nonerodible construction and designed to carry sustained flows, or earth- or grass-lined and designed to carry short-term infrequent flows at non-erosive velocities, where sustained flows are not expected. OSM notified Montana that it must further revise proposed ARM 26.4.639(10)(a) to allow for a single open-channel spillway only if it is of nonerodible construction and designed to carry sustained flows, or earth-or grass-lined and designed to carry short-term infrequent flows at non-erosive velocities where sustained flows are not expected.

By letter dated February 6, 1996, Montana responded that it would add language at ARM 26.4.639(10)(a) indicating the types of materials that may be used for spillways and the limits on the duration of spillway discharges, depending on materials used (Administrative Record No. MT-12-19). Montana submitted the proposed language in their May 15, 2001, response (Administrative Record No. MT-12-25). This proposed language is no less effective than the Federal regulation at 30 CFR 816.49(a)(9)/817.49(a)(9) and the Director approves ARM 26.4.639(10)(a).

At ARM 26.4.639(10)(b), Montana proposed to allow additional criteria for sedimentation ponds which do not meet the requirements of the Mine Safety and Health Administration (MSHA) at 30 CFR 77.216(a) and which rely primarily on storage to control runoff from the design precipitation event. The Federal regulations at 30 CFR 816.49(c)(2)(iii) /817.49(c)(2)(iii) require that the operator demonstrate and that a qualified registered professional engineer certify that the pond will safely control the design precipitation event, prior to the approval of a pond that relies on storage to control precipitation. OSM interpreted this revision as being no less effective than the Federal regulations. However, OSM also interpreted Montana's rules as having no counterpart to the Federal requirement that MSHA-sized impoundments be demonstrated and certified by a qualified registered professional engineer that the pond would control a design precipitation event. OSM requested in its October 17, 1995, letter that Montana revise ARM 26.4.639(10)(b) to include such demonstration and certification criteria (Administrative Record No. MT-12-16).

Montana responded by letter dated February 6, 1996, that all ponds, including those which use containment in lieu of a spillway, are covered by the certification requirements of ARM 26.4.639(19) (Administrative Record No. MT-12-19). With this clarification, OSM finds proposed ARM 26.4.639(10)(b) to be no less effective than the Federal regulations. The Director approves this revision.

At ARM 26.4.639(10)(b), Montana proposed to require that an impounding structure relying primarily on storage be designed to contain a 25-year, 24-hour design event, or greater event as specified by the department. The counterpart Federal regulation at 30 CFR 816.46(c)(2)(ii)(B)/817.46(c)(2)(ii)(B) requires that the minimum design be for a 100-year, 6-hour storm event. Because ARM 26.4.639(10)(b) allows for an impounding structure that may contain a smaller design event than the Federal regulations, OSM told Montana that the proposed rule was less effective than the Federal counterpart. OSM suggested that Montana either revise proposed ARM 26.4.639(10)(b) to require containment of a 100-year, 6-hour storm event, or demonstrate that the 25-year, 24-hour storm event produces greater volumes than does the 100-year, 6-hour storm event, in order to be no less effective than the Federal regulation.

Montana's narrative response provided data demonstrating that in all cases the precipitation from the 25-year, 24-hour storm exceeds that of the 100-year, 6-hour storm (Administrative Record No. MT-12-19). In addition, OSM previously approved Montana's use of the 25-year, 24-hour storm event, in lieu of the 100-year, 6-hour storm event, with respect to surface runoff diversions related to refuse piles and coal mine waste impoundments, in the August 19, 1992, Federal Register notice concerning SPATS No. MT-04-FOR (Administrative Record No. MT-7-27; 57 FR 37436). With this demonstration, OSM finds that the Montana rule provides for adequate containment for the run-off from a 100-year, 6-hour storm event and OSM's concern is resolved. The Director finds ARM 26.4.639(10)(b) to be no less effective than the Federal regulation and approves the Montana revision.

At ARM 26.4.639(22)(a)(i), Montana proposed to delete the need for a drainage basin to be stabilized prior to early removal of ponds and treatment facilities (sooner than 2 years) and to delete the cross-reference to meeting the requirements at ARM 26.4.711 through 26.4.735. Montana stated that ARM 26.4.633, which is cross-referenced, covers these requirements. At ARM 26.4.639(22)(a)(ii), Montana proposed to delete the cross-reference to ARM 26.4.735 and revise it to read 26.4.733. This is because ARM 26.4.734 and 26.4.735 no longer exist in the Montana program.

OSM agrees that the counterpart Federal requirements for 30 CFR 816.46(b)/817.46(b) are contained at ARM 26.4.633. However, OSM reviewed and approved the striking of this same language in a final rule Federal Register notice dated May 11, 1990 (55 FR 19727; Administrative Record No. MT-5-48). OSM sees no need to approve the deletion of the language at ARM 26.4.629(22)(a)(i) since we have already done so.

Montana proposed to add the requirement at ARM 26.4.645(6) and 26.4.646(6) that sampling and water quality analyses be conducted according to the methodology in the 15th edition of “Standard Methods for Examination of Water and Wastewater” or 40 CFR Parts 135 and 434, and “the department of health and environmental sciences document entitled ‘Circular WQB-7, Montana Numeric Water Quality Standards' dated April 4, 1994.” Montana also proposed deleting the option to elect methodology in Standard Methods when conducting surface water monitoring.

OSM responded that the addition of the State-specific requirement was acceptable as long as Circular WQB-7 did not conflict with any of the provisions of “Standard Methods for Examination of Water and Wastewater” or the provisions of 40 CFR parts 136 and 434. Following a review of Circular WQB-7, OSM found it was not in conflict with 40 CFR Parts 136 and 434, or “Standard Methods for Examination of Water and Wastewater.”

However, Circular WQB-7 is currently being revised. In the near future, Montana intends to submit revised programmatic rules with a more current version of Circular WQB-7 cross-referenced. Therefore, the Director defers a decision on ARM 26.4.645(6) and 26.4.646(6), at this time, until Montana's new rules are submitted and a current version of Circular WQB-7 is reviewed.

At ARM 26.4.721, Montana proposed to delete the 9-inch standard for determining repair of rills and gullies and to state that for “extensive rill or gully erosion, the department may require submittal of a plan of mitigation for such features and department approval prior to implementation of repair work.” The Federal regulations at 30 CFR 816.95(b)/817.95(b) require, under certain circumstances, that rills and gullies be filled, regraded, and stabilized with the topsoil replaced and the area reseeded and replanted. As ARM 26.4.721 included the same requirements as the Federal regulations, with the exception of the need to replace the topsoil, OSM asked Montana to verify that ARM 26.4.702 would provide for soil (topsoil) redistribution to replace topsoil during the repair of rills and gullies.

In the February 6, 1996, response (Administrative Record No. MT-12-19), Montana stated that ARM 26.4.702 is used for soil redistribution in the repair of rills and gullies in situations where soil replacement was included in the original reclamation plan. Montana stated that in some cases, redistribution has included the reuse of the eroded soil materials, or in other cases, redistribution has included the use of “new” soil materials such as surface soils. In the case of soil substitutes, such materials as spoils or scoria rock would be used to repair rills and gullies. With this explanation, the Director approves the Montana revision at ARM 26.4.721 as no less effective than the Federal regulations.

Montana proposed to delete the requirement at ARM 26.4.724(6) which allowed the success of revegetation of less than 100 acres to be based on United States Department of Agriculture (USDA) or United States Department of the Interior (USDI) technical guides, when the 100 acres was not a segment of a larger area proposed for disturbance by mining. There is no current Federal equivalent to this provision. There used to be a Federal provision at 30 CFR 816.116(a)/817.116(a) to allow the regulatory authority to measure revegetation success through the use of technical guidance from the USDA or the USDI. However, this provision was abolished in the September 2, 1983, OSM rulemaking concerning revegetation ( Federal Register 48 FR 40160).

Due to the fact that there is no current Federal counterpart provision to the deleted Montana rule, the Director finds that the Montana program remains no less effective than the Federal regulations and no less stringent than SMCRA with this deletion. The Director approves this deletion.

Montana proposed to revise ARM 26.4.726 (2) and (3) to read “live cover” instead of “cover.” At 30 CFR 816.116(a)(2)/817.116(a)(2), the Federal regulations use the term “ground cover” for the evaluation of revegetation success. Ground cover is defined as the area of the ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite.

“Live cover” is a subset of “ground cover” as defined by the Federal regulations. By allowing only the use of “live cover” in evaluating compliance with the revegetation success standards, Montana is not allowing the use of litter in evaluating revegetation success. Montana has proposed stricter vegetative standards by which to sample and evaluate revegetated areas. Therefore, the Montana standard is more stringent than the Federal counterpart. The Director finds proposed ARM 26.4.726(2) and (3) to be no less effective than the Federal regulation and approves the revision.

At ARM 26.4.821(1)(g), Montana proposed to allow the use of “technical standards derived from historical data” for evaluating revegetation success for alternate reclamation, which includes land reclaimed for use as special use pasture and cropland. The approved State program establishes conditions for the use of technical standards derived from historical data at ARM 26.4.724(5). The conditions include the specification that: (1) The data must come from the premine area or from an area that exhibits comparable cover, production, diversity, density, and utility as well as comparable management, soil type, topographic setting, and climate in comparison to those of the premine area; and (2) the data must be generated for a sufficient period of time to encompass the range of climatic variations typical of the premine or other appropriate area, or data generated from the revegetated area. Areas must be compared to historical data generated only during climatic conditions comparable to those conditions existing at the time revegetated areas are sampled. Historical records must be established for each plant community that will be compared to specific reclaimed area plant communities.

The Federal regulations at 30 CFR 816.116(a)(2)/817.116(a)(2) state that standards for success shall include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, and stocking. For grazing land, pastureland, or cropland, the Federal regulations at 30 CFR 816.116(b)(1) and (2)/817.116(b)(1) and (2) allow the use of reference areas or such other success standards approved by the regulatory authority for evaluating revegetation success. OSM has previously approved the use of technical standards derived from historical data for evaluating revegetation success on grazing land in Montana (March 21, 1991, Federal Register ; 56 FR 11666). Further, the conditions set for use of technical standards derived from historical data by Montana ensure that the requirements of 30 CFR 816.116(a)(2) /817.116(a)(2) are met. Therefore, use of technical standards is acceptable for evaluating special use pastureland and “cropland. The Director finds that the proposed revision at ARM 26.4.821(1)(g), concerning the use of technical standards derived from historical data for setting revegetation success standards on cropland and special use pasture, is not inconsistent with and is no less effective than the Federal regulations. The Director approves the revision.

Montana proposed to revise ARM 26.4.825(4)(a) and (c) and (6) to read “cropland” instead of “hayland.” The Federal regulations at 30 CFR 701.5 define cropland to include land used for hay crops, which is the same as hayland.

ARM 26.4.825 requires that all mined lands must be returned to a postmining land use of grazing land and fish and wildlife habitat. Any other postmining land use is considered to be alternate reclamation. The effect of the proposed change at ARM 26.4.825(4)(a) is to require that if the proposed land use is special use pasture, then the area must have a 5 year history of being utilized as special use pasture or cropland. The State may allow deviations in the location of special use pastures from the exact location of premining special use pasture or cropland (rather than hayland). There is no Federal counterpart to this Montana rule. While the definition of cropland is broader than hayland, the proposed change does not render the State program less effective than the Federal regulations.

The proposed change at ARM 26.4.825(4)(c) exempts pastureland from ARM 26.4.724(1), the establishment of native plant community reference areas, and ARM 26.4.728, which requires a predominant composition of native species.

The definition of pastureland at 30 CFR 701.5 states that it consists of land primarily used for the long-term production of domesticated forage plants. 30 CFR 816.116(b)(1) / 817.116(b)(1) allows either the use of reference areas or such other success standards which are approved by the regulatory authority. Although there is no direct Federal equivalent to ARM 26.4.825(4)(c), the Montana revision is not inconsistent with and is no less effective than the Federal regulations.

The effect of the revision at ARM 26.4.825(6) is to require enhancement of wildlife values and protection of wetlands when special use pasture or cropland is proposed. The Federal counterparts at 30 CFR 816.97(f) and (h)/817.97(f) and (h) likewise provide for the enhancement of wildlife values and wetland preservation and restoration. Therefore, the proposed revision is no less effective than the Federal regulations. The Director approves all revisions to ARM 26.4.825.

Montana proposed to revise ARM 26.4.927(3)(a) by requiring that the design of a durable rock fill include an internal drainage system “in accordance with ARM 26.4.924(14) or (15).” ARM 26.4.924(14), later recodified as (15), would allow for an alternative underdrain system. This is not allowed in the Federal counterparts at 30 CFR 816.71(f)(3)/817.71(f)(3), 816.73/817.73, 816.83(a)(3)/817.83(a)(3), and 816.102(e)/817.102(e).

In OSM's July 10, 1997, issue letter, we informed Montana that the cross-reference to ARM 26.4.924(14) would need to be deleted in order for ARM 26.4.927(3)(a) to be no less effective than the Federal regulations (Administrative Record No. MT-12-20). OSM reminded Montana that this provision was never part of the approved program. OSM told Montana in the August 19, 1992, Federal Register (57 FR 37436), when the provision was first proposed, that it could not approve ARM 26.4.924(14), subsequently (15). OSM codified at 30 CFR 926.16(e)(9) the requirement that Montana remove the provision at ARM 26.4.924(14) from its program.

By letter dated May 15, 2001, Montana submitted wording to OSM which deleted the provision at ARM 26.4.924(15) and cross-reference to it at ARM 26.4.927(3)(a) (Administrative Record. No. MT-12-25). This deletion satisfies part of the requirement at 30 CFR 926.16(e)(9) and makes the Montana rules no less effective than the Federal regulations. The Director approves the revision but does not remove the required program amendment at 30 CFR 926.16(e)(9), as not all the requirements of (e)(9) have been met.

OSM placed a required program amendment (30 CFR 926.16(e)(5)) on Montana in the August 19, 1992, Federal Register notice (57 FR 37436) to specify whether the waste disposal governed by ARM 26.4.924 and 26.4.932 was within or outside mine surface excavations, and to clarify what constituted a “waste disposal structure.” OSM placed the required program amendment on the Montana program due to the June 19, 1990, proposed revisions (Administrative Record No. MT-7-01) to ARM 26.4.924 and 26.4.932 which were not specifically directed either to disposal within mine surface excavations or to disposal outside mine excavations. OSM noted that the performance standards were the same for both, except for the required static safety factor.

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana proposed a definition of “waste disposal structure” at ARM 26.4.301(134) which stated that waste disposal structures are either composed of underground development waste or coal processing waste located outside of the mine workings and the surface area, and are other than impoundments or embankments. At ARM 26.4.924(3), Montana proposed similar wording to the general requirements for the disposal of underground development waste to clarify that underground development waste may not be placed in impoundments or embankments, to clarify the performance standards for the reclamation of waste disposal areas—including those relating to location, and to clarify that the disposal of underground waste into the spoils backfill of excavation areas must be in accordance with sections 3 and 20 of ARM 26.4.924.

Montana's revisions and clarification of the definition of a “waste disposal structure,” as well as the general requirements for the disposal of underground development waste, how they relate to the location of mine excavations, and which performance standards apply, assure that the program meets the Federal counterpart at 30 CFR 816.81/817.81 through 816.84/817.84. The Director finds the Montana rules to be no less effective than the counterpart Federal regulations and approves the revisions. The Director removes the required program amendment at 30 CFR 926.16(e)(5).

OSM placed a required program amendment (30 CFR 926.16(e)(6)) on Montana in the August 19, 1992, Federal Register notice (57 FR 37436; Administrative Record No. MT-7-27) to amend ARM 26.4.924(4) to require that all non-impounding underground development waste disposal structures meet the MSHA requirements at 30 CFR 77.214 and 77.215, and to clarify what constitutes a “coal waste refuse structure.”

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana deleted the undefined term “coal waste disposal structure” and revised ARM 26.4.924(4)(b) to require that “waste disposal structures” must meet the requirements of 30 CFR 77.214 and 77.215. With this revision, the Director finds the Montana revised rule to be no less effective than the Federal regulation and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(e)(6).

OSM placed a required program amendment (30 CFR 926.16(e)(7)) on Montana in the August 19, 1992, Federal Register notice (57 FR 37436) to incorporate a requirement no less effective than 30 CFR 816.83(c)(4)/817.83(c)(4) which concerns the covering of refuse piles with non-toxic materials.

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana proposed new language at ARM 26.4.924(9) which requires that waste disposal structures be covered with four feet of non-toxic and non-combustible material following final grading. With this revision, the Director finds that Montana's requirements are no less effective than the Federal requirements at 30 CFR 816.83(c)(4)/817.83(c)(4) and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(e)(7).

OSM placed a required program amendment (30 CFR 926.16(e)(8)) on Montana in the August 19, 1992, Federal Register notice (57 FR 37436) to add application requirements to ARM 26.4.930 which are no less effective than 30 CFR 780.25(e) and (f)/784.16(e) and (f). OSM placed the required program amendment on the Montana program due to the absence of requirements that specify detailed application and design requirements for coal processing waste impoundments. Specifically, the construction of impoundments from coal processing waste behind embankments constructed of other materials was not prohibited in the Montana program.

In the February 1, 1995, submittal (Administrative Record No. MT-12-01), Montana rectified this omission by cross-referencing the requirements at ARM 26.4.505(5) which in turn cross-reference the requirements at ARM 26.4.603, 26.4.639, and 26.4.642. ARM 26.4.505(6) prohibits the retention of coal waste impoundments as part of the post-mining land use. Therefore, the Director finds the Montana revised rule to be no less effective than the Federal regulation and approves the proposed language. The Director removes the required program amendment at 30 CFR 926.16(e)(8).

At ARM 26.4.932(5)(b), Montana proposed to delete the statements that: (1) Inspections may terminate when the coal processing waste has been graded; (2) the provisions of subsection (9) have been met (which primarily concern cover with a minimum of four feet of non-toxic and non-combustible material); and (3) the soil has been distributed in accordance with the soil redistribution and stockpiling provisions at ARM 26.4.702. In the place of this statement, Montana has added a provision that inspections would be made in accordance with the critical construction schedule contained in ARM 26.4.924(19)(b). ARM 26.4.924(19)(b) requires that inspections be made at least quarterly and during critical construction periods, which include the following: (1) Foundation preparation; (2) underdrains and protective filter systems; (3) installation of final surface drainage systems; and (4) final grading and revegetation.

The Federal counterpart regulation concerning the inspection of coal mine waste at 30 CFR 816.83(d)/817.83(d) includes, in addition to the Montana provisions listed above, the requirements that inspections are conducted by a qualified registered professional engineer or other qualified professional specialist under the direction of the professional engineer, there are more frequent inspections if a danger or harm exists to the public health and safety, a certified report made by the qualified, registered professional engineer to the regulatory authority promptly after each inspection, color photographs in the certified report of the drainage system and protective filters taken during and after construction but before coal mine waste covers the underdrains, and a copy of the report to be maintained at the minesite. These Federal requirements for the inspection of coal mine waste (30 CFR 816.83(d) and (d)(2) through (d)(4)/817.83(d) and (d)(2) through (d)(4)) are included in the Montana program at ARM 26.4.924(a), (c), (d), (e) and (f). However, Montana has only cross-referenced ARM 26.4.924(b).

Therefore, Montana needs to revise the cross-reference at ARM 26.4.932(5)(b) to read “ARM 26.4.924” in general, in order to be no less effective than the Federal counterpart regulations. Therefore, the Director defers on the approval of ARM 26.4.932(5)(b) at this time until Montana revises the cross-reference to read “ARM 26.4.924.”

At ARM 26.4.1014, Montana proposed additional requirements for prospecting test pits. If the coal from a test pit is sold directly to, or commercially used directly by, the intended end user, or, if the coal is sold through a broker or agent, proposed ARM 26.4.1014(2)(c) required that a test pit permit application contain the information specified at proposed ARM 26.4.1014(2)(c)(i) through (iii).

The Federal regulations at 30 CFR 772.14 also provide for such use of coal from exploration operations. However, the Federal regulations at 30 CFR 772.14(b) require prior written approval by the regulatory authority that such sale or commercial use is for testing purposes, otherwise a permit to mine must be obtained.

Proposed ARM 26.4.1014 does not specifically require prior written approval from the State prior to use of the coal in this manner. OSM requested an interpretation from Montana that, because the ARM provisions in subchapter 4 are applicable to test pit permits, Montana's program provides for specific written approval prior to such use of coal obtained from prospecting test pits at ARM 26.4.1014 (Administrative Record No. MT-12-16). There is no specific reference to subchapter 4 for such an approval at ARM 26.4.1014.

For whatever reason, Montana did not respond to OSM with an interpretation that written approval from the State is required prior to sale or commercial use of coal from test pits for testing purposes, in the response dated February 6, 1996 (Administrative Record No. MT-12-19). In the absence of such an interpretation, and because the revision is otherwise no less effective than the Federal regulations, the Director approves ARM 26.4.1014 with the interpretation that Montana's program provides for specific written approval prior to the use of coal obtained from prospecting test pits.

We asked for public comments on the amendment by letters dated February 8, 1995, and March 1, 1995 (Administrative Record Nos. MT-12-03 and MT-12-08). The Northern Plains Resource Council (NPRC) responded on April 14, 1995, with comments on the proposed revisions (Administrative Record No. MT-12-15) as follows:

The NPRC had concerns that Montana omitted iron and manganese from testing in this subsection. OSM addressed similar issues at Finding No. 5 above.

The NPRC commented that the change from two to four spoil ridges would result in a standard variance which would not promote reclamation as contemporaneously as possible and could result in adverse impacts. While OSM's regulation at 30 CFR 816.101(a)(2)/817.101(a)(2) is suspended indefinitely, OSM has had a four spoil ridge requirement off and on since 1979. We have no basis for finding that requiring regrading within four spoil ridges is not as contemporaneous as practicable. OSM finds Montana's rules to be no less effective than the Federal provisions at 30 CFR 816.100/817.100.

The NPRC commented that revisions made to this section would “eliminate all highwalls, with certain very limited exceptions * * *” OSM believes that the NPRC intended to state “delete the requirement to eliminate all highwalls.” OSM also read Montana's revision as deleting a requirement to eliminate all highwalls and depressions with spoil and suitable waste materials, as well as the allowable exemption from that requirement, and to require that the operator demonstrate that the volume of spoil and suitable waste materials is more than sufficient to restore the disturbed area to approximate original contour (AOC). Montana explained in its February 6, 1996, letter (Administrative Record No. MT-12-19) that this revision was made to eliminate a redundancy with ARM 26.4.501A(1). However, since that time, Montana has eliminated ARM 26.4.501A(1) from its regulatory program. In the near future, Montana will submit its current regulatory program to OSM for evaluation of all revised rules, including the requirement to eliminate all highwalls and depressions with spoil and suitable waste materials. At this time, OSM is deferring on the proposed revision at ARM 26.4.519A.

The NPRC had concerns with ARM 26.4.515(2) and wondered if those rules were approved by OSM. OSM responds that approval of ARM 26.4.515(2) was deferred by OSM in the May 11, 1990, Federal Register notice (55 FR 19727; Administrative Record No. MT-5-48). A deferral means that a provision is unenforceable until Montana and OSM resolve the issues related to the rulemaking. Montana has since developed guidelines concerning approximate original contour and post-mining topography which it believes will address OSM's concerns with ARM 26.4.515(2). Those guidelines will be submitted in the near future to OSM.

Although the NPRC listed ARM 623.4.623(2)(a)(iii) as the rule in question, OSM believes that ARM 26.4.623(2)(a)(iii) is the correct cite. The NPRC objects to the change from a daily blasting period with a maximum of four hours per day to a maximum of eight hours per day. At the same time, the NPRC acknowledges that Montana has the right to impose more restrictive blasting conditions by the authority given to the States at 30 CFR 816.64(a)(2)/817.64(a)(2). Because Montana is complying with its responsibilities of 30 CFR 816.64(a)(2)/817.64(a)(2), OSM suggests that the NPRC address any on-the-ground concerns with blasting schedules to Montana.

The NPRC expressed concerns that the proposed revisions to this subsection would result in a lack of safety standards. OSM addressed similar concerns at finding no. 14a and b above concerning a single emergency spillway and the containment of a 25-year, 24 hour storm event.

The NPRC appeared to be concerned with Montana's elimination of its nine inches or greater, rill and gulley standard for regraded and resoiled lands. OSM points out that the Federal counterpart at 30 CFR 816.95/817.95 does not use a depth criteria to determine eradication standards. Rather the Federal rules determine the need to eradicate rills and gullies based on their impact to postmining land use or the reestablishment of vegetative cover, or the impact to water quality standards for receiving streams. Montana has proposed rules with similar language which are no less effective than the Federal regulations.

The NPRC expressed concerns that without a definition of “substantially disturb,” Montana would not be able to interpret its regulations at ARM 26.4.1001 and 1001A. Subsequent to the NPRC's letter dated April 14, 1995, ARM 26.4.1001 and 26.4.1001A were removed from this submittal, revised and approved in SPATS No. MT-018-FOR, Federal Register notice dated January 22, 1999 (64 FR 3611). Montana submitted a definition of “substantially disturb” at ARM 26.4.301(114) which was also approved at that time.

The NPRC objected to Montana's use of general cross-references, in particular subsection (g), stating that the response is not specific enough. In support, the NPRC cites the corresponding Federal rules at 30 CFR 780.37(a)/784.24(a) and their specific references “down to section and subsection.” However, the Federal regulation at 30 CFR 780.37(a)/784.24(a) requires that the State “Describe the plans to remove and reclaim each road that would not be retained * * *” Therefore, when Montana lists subchapters 5, 6, 7, and 8 of ARM, Montana is listing the pertinent subchapters which have road-specific reclamation information which is required at 30 CFR 780.37(a)/784.24(a). OSM believes that Montana is complying with the Federal regulations and its rules are no less effective than the Federal regulations.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Montana program by letters dated February 8, 1995; March 1, 1995; and May 23, 2001 (Administrative Record Nos. MT-12-03, MT-12-08 and MT-12-27).

Four agencies responded that they had no comments: the U.S. Army Corps of Engineers (March 2 and March 20, 1995, letters; Administrative Record Nos. MT-12-09 and MT-12-14), the Bureau of Mines (March 17, 1995, letter; Administrative Record No. MT-12-13), the Mine Safety and Health Administration (March 9, 1995 and June 11, 2001, letters; Administrative Record Nos. MT-12-11 and MT-12-30); and the Bureau of Indian Affairs (June 11, 2001, letter; Administrative Record No. MT-12-29).

The Natural Resources Conservation Service (NRCS) responded on March 8, 1995, with comments on the approved Montana program but had no comments on the proposed revisions (Administrative Record No. MT-12-10). The NRCS had the following comments concerning Montana's already approved program:

The NRCS commented that Montana needed to change the reference from the former SCS to the current NRCS, specifically at ARM 26.4.724(3)(a) and 26.4.825(1)(b). OSM is aware that Montana has already made the requested change to those sections in its 1999 revised rules—which will be submitted to OSM in the near future.

The NRCS suggested that “current condition and trend” be revised to read “current ecological condition and trend.” The requested information at ARM 26.4.304(9)(b) comprises aspects of the vegetative community which Montana has decided are necessary to the permit application. These descriptions are State guidelines, as allowed at 30 CFR 779.19(a)/783.19(a) and not Federal requirements. Therefore, OSM cannot require Montana to incorporate the term “ecological.” OSM can, however, send the comment to Montana for consideration when, at such future date, the program is amended.

The NRCS suggested that the soil survey be done at the first order level of detail, which would be consistent with the map scale of one inch equals 400 feet at ARM 26.4.304(11). Both the Federal regulations and Montana's program specify that a soil survey be conducted in accordance with the standards of the National Cooperative Soil Survey. As the scale specified, one inch equals 400 feet, is consistent with a soil survey of the first order, Montana is performing a soil survey to the specifications requested by the NRCS.

The NRCS suggested that the 51 percent native species required by Montana be changed to 75 percent native species, which is required by the NRCS. The counterpart Federal regulations at 30 CFR 816.111(a)(2)/817.111(a)(2) do not specify a certain percentage of native species, but only that native species be used. OSM cannot require Montana to adopt a programmatic requirement which is more stringent than the Federal regulations.

The NRCS suggested that the reference to the “Land Capability Guide for Montana, U.S. Soil Conservation Service, September 1, 1982” be replaced with a reference to an updated NRCS guide, the “current Field Office Technical Guide (FOTG) for Natural Resources Conservation Service.” However, there is no Federal counterpart to these rules. Therefore, there is no Federal standard to measure the Montana rule by. OSM cannot require the States to revise their programs when there is no Federal counterpart.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from 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. ). As this amendment did not relate to air or water quality standards adopted under the authority of the Clean Air Act or the Clean Water Act, OSM requested comments on the amendment from EPA (Administrative Record No. MT-12-04). EPA responded on February 23, 1995, that it had no comments on Montana's amendment (Administrative Record No. MT-12-06).

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 February 8, 1995, we requested comments on Montana's amendment (Administrative Record No. MT-12-03), but neither responded to our request.

Based on the above findings, we approve, with certain exceptions, the amendment sent to us by Montana on February 1 and 28, 1995, and further clarified by letter dated February 6, 1996.

We approve, as discussed in: finding no. 1, ARM 26.4.301(79) through (119), (121) through (133), and (135) through (137), concerning definitions; ARM 26.4.407(1) and (2), concerning conditions of permit; ARM 26.4.601(7), concerning general requirements for road and railroad loop construction; ARM 26.4.639(18)(c), concerning sedimentation ponds and other treatment facilities; ARM 26.4.711(2) through (5), concerning establishment of vegetation; ARM 26.4.924(5), (10) through (14), (16), (17), (18), and (20), concerning disposal of underground development waste: general requirements; ARM 26.4.1005(2), concerning drill holes; ARM 26.4.1006(1), concerning roads and other transportation facilities; ARM 26.4.1007(2), concerning grading, soil salvage, storage, and redistribution; and ARM 26.4.1009(1), concerning diversions; finding no. 2, ARM 26.4.308(2), concerning operations plan; ARM 26.4.314(3), concerning plan for protection of the hydrologic balance; ARM 26.4.405(6) and (8), concerning findings and notice of decision; ARM 26.4.501A(3)(a), concerning final grading requirements; ARM 26.4.524(2), concerning signs and markers; ARM 26.4.601(5), concerning general requirements for road and railroad loop construction; ARM 26.4.602(2), concerning location of roads and railroad loops; ARM 26.4.603(9) and Introduction, concerning embankments; ARM 26.4.605(3)(a)(i), concerning hydrologic impact of roads and railroad loops; ARM 26.4.623(2)(b)(iii), concerning blasting schedule; ARM 26.4.633(2), concerning water quality performance standards; ARM 26.4.634(1) and (2), concerning reclamation of drainages; ARM 26.4.638(2)(a), concerning sediment control structures; ARM 26.4.639(1), (10)(c) and (18), Introduction, concerning sedimentation ponds and other treatment facilities; ARM 26.4.642(5) and (8), concerning permanent and temporary impoundments; ARM 26.4.702(4), concerning redistribution and stockpiling of soil; ARM 26.4.711(6), concerning establishment of vegetation; ARM 26.4.927(2)(c), concerning disposal of underground development waste: durable rock fills; ARM 26.4.932(8)(a)(ii), concerning disposal of coal processing waste; ARM 26.4.1002(1) and (2), concerning information and monthly reports; ARM 26.4.1005(3), concerning drill holes; ARM 26.4.1006(2) through (4), concerning roads and other transportation facilities; ARM 26.4.1007(1), concerning grading, soil salvage, storage, and redistribution; ARM 26.4.1009(2), concerning diversions; ARM 26.4.1011(1), concerning hydrologic balance; ARM 26.4.1116(7)(c), concerning bonding: criteria and schedule for release of bond; ARM 26.4.1116A(1) and (2), concerning reassertion of jurisdiction; ARM 26.4.1141(3), concerning designation of lands unsuitable: definition; ARM 26.4.1212(1), concerning point system for civil penalties and waivers; finding no. 4, ARM 26.4.301(120), the definition of “test pit;” finding no. 5, ARM 26.4.304(5), (6)(a)(ii) and (6)(b)(ii)(B), concerning baseline: information: environmental resources; finding no. 6, ARM 26.4.314(5), concerning protection of the hydrologic balance; finding no. 7, ARM 26.4.321(1) and (3), concerning transportation facilities plan; finding no. 8, ARM 26.4.404(5)(b), concerning review of application; finding no. 9, ARM 26.4.405(6)(l), concerning findings and notice of decision; finding no. 10, ARM 26.4.407(4), concerning conditions of permit; finding no. 11, ARM 26.4.505(4) through (8), concerning burial and treatment of waste materials and disposal of off-site generated waste and fly ash; finding no. 13, ARM 26.4.603(9) and 26.4.639(18)(b), concerning sedimentation ponds and other treatment facilities: construction of sedimentation ponds that meet the criteria of 30 CFR 77.216A; finding no. 14, ARM 26.4.639(10)(b) and (19), concerning the construction of sedimentation ponds; finding no. 17, ARM 26.4.721(1) through (3), concerning eradication of rills and gullies; finding no. 18, ARM 26.4.724(6), concerning the use of revegetation comparison standards; finding no. 19, ARM 26.4.726(2) and (3), concerning vegetation production, cover, diversity, density and utility requirements; finding no. 20, ARM 26.4.821(1)(g), concerning alternate reclamation: submission of plan; finding no. 21, ARM 26.4.825(4)(a) and (c) and (6), concerning alternate reclamation: alternate revegetation; finding no. 22, ARM 26.4.924(15) and 26.4.927(3)(a), concerning the disposal of underground development waste; finding no. 23, ARM 26.4.301(134) and 26.4.924(3), (4), (8), (9), (19) and (21), concerning the definition of “waste disposal structure” and the disposal of underground development waste: general requirements; finding no. 24, ARM 26.4.930(3), concerning placement and disposal of coal processing waste: special application and requirements; and finding no. 26, ARM 26.4.1014, concerning test pits.

We defer on, as discussed in finding no. 3, ARM 26.4.301(78); 26.4.303, Introduction, (1), (6) through (8), (13) through (15), (20) through (24); 26.4.404(7) through (10); ARM 26.4.405(5); 26.4.405A; 26.4.405B; and ARM 26.4.1206(1), concerning ownership and control; finding no. 12, ARM 26.4.519A, concerning thick overburden and excess spoil; finding no. 16, ARM 26.4.645(6) and 26.4.646(6), concerning groundwater and surface water monitoring; and finding no. 25, ARM 26.4.932(5)(b), concerning the disposal of coal processing waste.

We already approved, as discussed in finding no. 15, ARM 26.4.639(22), concerning the removal of sedimentation ponds and other treatment facilities, in the May 11, 1990, Federal Register notice (55 FR 19727; SPATS No. MT-001-FOR and MT-002-FOR).

To implement this decision, we are amending the Federal regulations at 30 CFR Part 926, which codify decisions concerning the Montana 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 Montana program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this final regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

This rule is exempted from review by the Office of Management and Budget (OMB) 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 since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

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 regulation 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.

This final rule implements section 712 of the National Defense Authorization Act for Fiscal Year 1999 which modified chapter 55 of title 10, United States Code by adding a new section 1097a which provides for automatic TRICARE Prime enrollment for active duty families of E-4 and below in certain circumstances. Owing to the small number of family members of E-4 and below who are not already enrolled in TRICARE Prime, and the nature of TRICARE Prime enrollment, the Department will send an enrollment letter to all sponsors with non-enrolled family members. Sponsors with non-enrolled family members will be automatically referred to the local TRICARE Service Center for enrollment. They will be given the opportunity to select or be assigned a primary care manager, or to refuse enrollment into TRICARE Prime. The choice of whether to remain enrolled in TRICARE Prime, or to decline enrollment to participate in TRICARE Extra or Standard remains completely voluntary. They may also re-enroll at any time. The one year lock-out provision for early disenrollment will not apply to any family member of E-4 and below regardless of how or when they were enrolled.

Beneficiaries who are enrolled into TRICARE Prime will receive official notification of their enrollment in writing such as a letter with beneficiary card. For those who remain eligible for TRICARE Prime enrollment, the sponsor will be sent a written notification of the pending expiration and renewal of the TRICARE Prime enrollment. TRICARE Prime enrollments shall be automatically renewed upon the expiration of the enrollment unless the renewal is declined by the sponsor.

The interim final rule was published in the Federal Register on June 28, 2000 (65 FR 39804). We received one comment from a beneficiary group who felt that the intent of the program reflects a paternalistic attitude indicating junior enlisted family members lack the capacity to make a selection of health care benefits that is in their best interest. They contend that proper education concerning the TRICARE benefit would be a more effective method to assure beneficiaries that they have made a proper selection of health care services. They also recommend that we design a mechanism whereby the beneficiary acknowledges enrollment in the program such as an enrollment form as is required today. They are particularly concerned with the transient nature of the military community and the potential of forcing families into high Point of Service charges.

Response: Based on the above comments, the Department will focus on marketing this program to this beneficiary population. An enrollment form will continue to be required of these beneficiaries which will document the fact that they accept the TRICARE Prime rules and it will allow them to provide their primary care manager preferences.

Executive Order 12866 requires certain regulatory assessments for any significant regulatory action, defined as one which would result in an annual effect on the economy of $100 million or more, or have other substantial impacts.

The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities.

This rule has been designated as significant and has been reviewed by the Office Management and Budget as required under the provisions of Executive Order 12866.

The final rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 55).

This rule is being issued as a final rule.

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

On September 20, 2001 (66 FR 48399), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from the SCAQMD correcting the adoption date for Rule 109. Consequently, we have published the correct date within this notice at the table above.

No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 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. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 15, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

In this direct final rulemaking, EPA is reinstating the redesignation to attainment for the Kentucky portion of the Cincinnati-Hamilton area for the 1-hour ozone NAAQS. The Cincinnati-Hamilton area, which includes the Ohio Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky Counties of Boone, Campbell, and Kenton; was redesignated to attainment for the 1-hour ozone NAAQS (65 FR 37879, June 19, 2000), effective July 5, 2000.

EPA is taking this action in response to the Court decision in Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) which vacated EPA's redesignation of the Cincinnati-Hamilton area to attainment and remanded to EPA for further proceedings consistent with the Court's opinion. The Court in Wall v. EPA considered a number of challenges to EPA's redesignation action, but upheld EPA's redesignation action in all respects with regard to the Kentucky portion of the Cincinnati-Hamilton area. The Court also concluded that EPA erred only on one element that pertained solely to the Ohio portion of the Cincinnati-Hamilton area. EPA is addressing the remand relating to the Ohio portion of the Cincinnati-Hamilton area in a separate rulemaking action.

Under section 107(d) of the Clean Air Act (CAA) as amended in 1977, all counties in the Cincinnati-Hamilton area were designated as an ozone nonattainment area in March 1978 (43 FR 8962). On November 6, 1991 (56 FR 56694), pursuant to section 107(d)(4)(A) of the CAA as amended in 1990, the Ohio Counties of Butler, Clermont, Hamilton, and Warren and the Kentucky Counties of Boone, Campbell, and Kenton were designated as the Cincinnati-Hamilton moderate ozone nonattainment area, due to monitored violations of the 1-hour ozone NAAQS that occurred during the 1987-1989 time frame.

For the 1996-1998 ozone seasons, Kentucky and Ohio recorded three years of complete, quality-assured, ambient air monitoring data for the Cincinnati-Hamilton area that demonstrated attainment with the 1-hour ozone NAAQS, making the area eligible for redesignation. Quality-assured ozone monitoring data for the 1999 and 2000 ozone seasons, and preliminary ozone monitoring data for the 2001 ozone season, show that the area continues to attain the 1-hour ozone NAAQS.

The Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet (Cabinet) and the State of Ohio Environmental Protection Agency (OEPA) submitted separate requests to redesignate the Kentucky and Ohio portions of the Cincinnati-Hamilton area from nonattainment to attainment for the 1-hour ozone NAAQS. On October 28, 1999, the Cabinet submitted a prehearing redesignation request and requested that EPA parallel process this submittal. The Cabinet submitted the final redesignation request, including public hearing results, on December 13, 1999. On July 2, 1999, EPA received a proposed redesignation request from OEPA. OEPA submitted additional supporting information on August 16, 1999, and completed the submittal by providing public hearing results on December 22, 1999.

On January 24, 2000 (65 FR 3630) EPA proposed approval of the above requests. This rulemaking also proposed to determine that the Cincinnati-Hamilton area attained the 1-hour ozone NAAQS by its extended attainment date, and proposed to approve an exemption for the area from nitrogen oxides requirements as provided for in section 182(f) of the CAA. After taking and considering comments, EPA issued a final rulemaking (65 FR 37879, June 19, 2000), effective July 5, 2000, determining that the Cincinnati-Hamilton area had attained the 1-hour ozone NAAQS. This rulemaking also approved the Cabinet's and OEPA's redesignation requests, including their plans for maintaining the 1-hour ozone NAAQS.

On August 17, 2000, two Ohio residents and the Ohio chapter of the Sierra Club petitioned the Court for review of EPA's redesignation of the Cincinnati-Hamilton area. The petitioners urged the Court to find that EPA erred in a number of respects, but the Court upheld EPA's actions with respect to all requirements for redesignation that relate to Kentucky. The Court also rejected all of the petitioners' challenges with respect to the Ohio portion of the Cincinnati-Hamilton area, with the sole exception of EPA's finding that it could approve Ohio's redesignation request before Ohio had fully adopted all of the Reasonably Available Control Technology (RACT) rules of part D, subpart 2. Specifically, the Court rejected challenges to, and upheld EPA's approvals of, the Kentucky and Ohio maintenance plans and EPA's conclusions with respect to transportation conformity requirements. The Court concluded that EPA exceeded its discretion by determining that Ohio did not need to fully adopt all of the RACT rules of part D, subpart 2 before being redesignated. The Court vacated “EPA's action in redesignating Cincinnati-Hamilton area to attainment status for ground level ozone” and “remanded for further proceedings consistent with this opinion.”

In response to the Court's vacatur and remand, EPA believes that it is consistent with the Court's opinion to reinstate the redesignation of the Kentucky portion of the Cincinnati-Hamilton area, to become effective as of the original effective date of this redesignation action. The grounds for reinstatement are as follows: (1) EPA has issued a final redesignation action for the Kentucky portion of the area, after notice and comment rulemaking; (2) the Court, after reviewing EPA's actions, has upheld EPA's determination of attainment for the entire Cincinnati-Hamilton area (both the Ohio and Kentucky portions), EPA's approval of the maintenance plans for both the Kentucky and Ohio portions of the area, and EPA's action approving Kentucky's request for redesignation of the Kentucky portion of the Cincinnati-Hamilton area. Thus, both EPA and the Court concur that Kentucky has fully met the requirements for redesignation of the Kentucky portion of the Cincinnati-Hamilton area, the entire area was determined to be in attainment for the 1-hour ozone NAAQS, and both portions of the area have fully-approved maintenance plans that have withstood challenges after judicial review. The Court left intact all of EPA's determinations with respect to attainment and maintenance for the entire area, as well as all the remaining requirements for redesignation of the Kentucky portion of the Cincinnati-Hamilton area.

The CAA expressly provides for designation and redesignation of portions of nonattainment areas. See, for example section 107(3)(D): “The Governor of any State may, on the Governor's own motion, submit to the Administrator a revised designation of any area or portion thereof within the State * * *.” Similarly, section 107(d)(3)(E) provides that: “The Administrator may not promulgate a redesignation of a nonattainment area ( or portion thereof ) to attainment unless—* * *.”

EPA has in the past approved redesignation requests for a portion of an area in a multi-state nonattainment area that had attained the standard. See, for example, the June 29, 1995, redesignation of the Huntington, West Virginia, portion of the Huntington-Ashland, Kentucky, ozone nonattainment area to attainment and approval of that area's maintenance plan (60 FR 33748).

Under these circumstances, EPA has the authority to redesignate the Kentucky portion of the area, independent of whether Ohio has met all the requirements for a fully approved State Implementation Plan (SIP) for the Ohio portion of the area.

When it takes effect, the reinstatement of EPA's redesignation for the Kentucky portion of the Cincinnati-Hamilton area will be effective as of the original effective date of EPA's June 19, 2000, redesignation action. Thus, the official designation of the Kentucky Counties of Boone, Campbell, and Kenton, as identified in 40 CFR 81.318 will continue to read attainment as of July 5, 2000. This direct final rulemaking has no impact on the official designation of the Ohio Counties of Butler, Warren, Clermont, and Hamilton. The attainment status of the Ohio portion of the Cincinnati-Hamilton area is being addressed in a separate rulemaking action.

Other EPA actions taken in the June 19, 2000, redesignation rulemaking for the Cincinnati-Hamilton area and upheld by the Court are unaffected by today's rulemaking. EPA's approvals of Kentucky's and Ohio's maintenance plans have remained in place, since the Court upheld our approval of these plans. Similarly, EPA's determination of attainment for the area has remained in place. Thus the requirements of section 172(c)(1), 182(b)(1) and 182(j) concerning the submission of the ozone attainment demonstration and the requirements of section 172(c)(9) concerning contingency measures for reasonable further progress or attainment continue to remain inapplicable to the area. Since the NO X exemption was not affected by the Court's ruling, the area also remains exempt from section 182(f) NO X requirements for moderate ozone nonattainment areas.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely reinstates a previous redesignation to attainment, an action that affects the attainment status of a geographical area. Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on sources, including small entities. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rulemaking does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely reinstates a previous action redesignating an area to attainment—an action which affects the attainment status of a geographical area. It does not impose any new requirements on sources, or allow a state to avoid adopting or implementing other requirements. Nor does it alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this action. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. The current action merely reinstates a previous action that was taken based on review of a Kentucky SIP submittal that satisfied all CAA provisions. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 15, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301214. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of November 7, 2001 (66 FR 56305) (FRL-6807-9), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP 1E6350) by Huntsman Corporation, 3040 Post Oak Blvd., Houston, TX. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that the existing tolerance exemption listed under 40 CFR 180.1001(c) for 1,2-ethanediamine, polymer with methyl oxirane and oxirane be amended to include a number average molecular weight (MW) of 1,100 for residues of 1,2-ethanediamine, polymer with methyl oxirane and oxirane, (CAS Reg. No. 26316-40-5).

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

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

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

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. 1,2-Ethanediamine, polymer with methyl oxirane and oxirane is not a water absorbing polymer with a number average MW greater than or equal to 10,000 daltons.

Additionally, the polymer, 1,2-ethanediamine, polymer with methyl oxirane and oxirane, also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW of 1,100 number average MW is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, 1,2-ethanediamine, polymer with methyl oxirane and oxirane meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 1,2-ethanediamine, polymer with methyl oxirane and oxirane.

For the purposes of assessing potential exposure under this exemption, EPA considered that 1,2-ethanediamine, polymer with methyl oxirane and oxirane could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 1,2-ethanediamine, polymer with methyl oxirane and oxirane is 1,100 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 1,2-ethanediamine, polymer with methyl oxirane and oxirane conform to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not 1,2-ethanediamine, polymer with methyl oxirane and oxirane shares a common mechanism of toxicity with any other chemicals. However, 1,2-ethanediamine, polymer with methyl oxirane and oxirane conforms to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of 1,2-ethanediamine, polymer with methyl oxirane and oxirane.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin safety will be safe for infants and children. Due to the expected low toxicity of 1,2-ethanediamine, polymer with methyl oxirane and oxirane, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that 1,2-ethanediamine, polymer with methyl oxirane and oxirane is an endocrine disruptor.

In 40 CFR 180.1001(c) there is an existing exemption from the requirement from a tolerance for 1,2-ethanediamine, polymer with methyl oxirane and oxirane (CAS Reg. No. 26316-40-5) minimum number average MW 2,800 and the range of number average MW is 2,800 to 10,000 daltons.

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

The Agency is not aware of any country requiring a tolerance for 1,2-ethanediamine, polymer with methyl oxirane and oxirane nor have any CODEX Maximum Residue Levels been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of 1,2-ethanediamine, polymer with methyl oxirane and oxirane from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301214 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 15, 2002.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. M3708, Waterside Mall, 1200 Pennsylvania Ave., NW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301214, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301216. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of November 1, 2001 (66 FR 55178) (FRL-6807-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP 5E4595) by Wacker Silicones, 3301 Sutton Road, Adrian, MI. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001(c), and (e) be amended by establishing an exemption from the requirement of a tolerance for residues of tetraethoxysilane polymer with hexamethyldisiloxane (CAS Reg. No. 104133-09-7).

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

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

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

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. Tetraethoxysilane polymer with hexamethyldisiloxane is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. Tetraethoxysilane polymer with hexamethyldisiloxane does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. Tetraethoxysilane polymer with hexamethyldisiloxane does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. Tetraethoxysilane polymer with hexamethyldisiloxane is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. Tetraethoxysilane polymer with hexamethyldisiloxane is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. Tetraethoxysilane polymer with hexamethyldisiloxane is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, tetraethoxysilane polymer with hexamethyldisiloxane, also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW of 6,574-6,695 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, tetraethoxysilane, polymer with hexamethyldisiloxane meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to tetraethoxysilane, polymer with hexamethyldisiloxane.

For the purposes of assessing potential exposure under this exemption, EPA considered that tetraethoxysilane, polymer with hexamethyldisiloxane could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of tetraethoxysilane, polymer with hexamethyldisiloxane is 6,574-6,695 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since tetraethoxysilane, polymer with hexamethyldisiloxane conforms to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency considers “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not tetraethoxysilane, polymer with hexamethyldisiloxane share a common mechanism of toxicity with any other chemicals. However, tetraethoxysilane, polymer with hexamethyldisiloxane conforms to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of tetraethoxysilane, polymer with hexamethyldisiloxane.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of tetraethoxysilane, polymer with hexamethyldisiloxane, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that tetraethoxysilane, polymer with hexamethyldisiloxane is an endocrine disruptor.

There are not any existing exemptions from the requirement of a tolerance for tetraethoxysilane, polymer with hexamethyldisiloxane.

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

The Agency is not aware of any country requiring a tolerance for tetraethoxysilane, polymer with hexamethyldisiloxane nor have any CODEX Maximum Residue Levels been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of tetraethoxysilane, polymer with hexamethyldisiloxane from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301216 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 15, 2002.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. M3708, Waterside Mall, 1200 Pennsylvania Ave., NW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301216, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm.

2. In person . The Agency has established an official record for this action under docket control number OPP-301207. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of November 8, 2000 (65 FR 66998) (FRL-6750-2), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP) for a tolerance by FMC Corporation, 1735 Market Street, Philadelphia, PA 19103. This notice included a summary of the petition prepared by FMC Corporation, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.418 be amended by establishing a tolerance for residues of the insecticide zeta-cypermethrin (-alpha-cyano(3-phenoxyphenyl) methyl (±)( cis - trans 3-(2,2-dichloroethenyl)-2,2 dimethylcyclopropanecarboxylate in or on the following raw agricultural commodities:

PP 0F06207 proposed tolerances in or on the raw agricultural commodities wheat, grain at 0.15 ppm; wheat forage, at 2.5 ppm; hay at 6.0 ppm; wheat, straw at 6.5 ppm; wheat, bran at 0.20 ppm; sorghum, grain, at 0.50 ppm; sorghum, forage at 0.10 ppm; sorghum fodder at 1.5 ppm; tomatoes at 0.10 ppm; peppers at 0.30 ppm; peas and beans (dried, succulent, and edible podded) at 0.50 ppm; soybeans at 0.05 ppm; poultry, meat at 0.05 ppm; poultry, meat by-products at 0.05 ppm; poultry, fat at 0.05 ppm; eggs at 0.05 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.3 ppm; fat of cattle, goats, hogs, horses, and sheep at 0.30 ppm; and milk, fat at 0.2 ppm (reflecting 0.01 ppm in whole milk).

Based on EPA's review, the petition was revised by the petitioner to:Propose tolerances of 0.5 ppm for edible podded legume vegetables (Crop subgroup 6A); propose tolerances of 0.1 ppm for succulent, shelled peas and beans (Crop subgroup 6B); propose tolerances of 0.05 ppm in or on dried, shelled peas and beans, except soybean (Crop subgroup 6C); propose tolerances of 0.05 ppm in or on soybean, seed; propose tolerances of 0.2 ppm in or on the fruiting vegetables, except cucurbits group (Crop group 8); propose tolerances of 0.5 ppm in or on sorghum, grain; propose tolerances of 0.1 ppm in or on sorghum forage; propose tolerances of 5.0 ppm in or on sorghum, stover; propose tolerances of 0.2 ppm in or on wheat, grain; propose tolerances of 3.0 ppm in or on wheat, forage; propose tolerances of 6.0 ppm in or on wheat, hay; propose tolerances of 7.0 ppm in or on wheat straw; propose tolerances of 10.0 ppm in or on aspirated grain fractions; propose tolerances of 0.2 ppm in or on meat of cattle, goats, hogs, horses, and sheep.

Although EPA is requesting a number of changes to the initial petitions and Notice of Filings, the nature of the changes, i.e. clarification and correction of commodity terms, international harmonization of tolerances, reduction in tolerance levels are not considered significant nor do they alter the risk assessment. Therefore, EPA is issuing this as a final action.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for residues of zeta-cypermethrin and its inactive R -isomers on edible podded legume vegetables (Crop subgroup 6A) at 0.5 ppm; succulent, shelled peas and beans (Crop subgroup 6B) at 0.1 ppm; dried, shelled peas and beans, except soybean (Crop subgroup 6C) at 0.05 ppm; soybean, seed at 0.05 ppm; fruiting vegetables, except cucurbits (Crop group 8) at 0.2 ppm; sorghum, grain at 0.5 ppm; sorghum, forage at 0.1 ppm; sorghum, stover at 5.0 ppm; wheat, grain at 0.2 ppm; wheat, forage at 3.0 ppm; wheat, hay at 6.0 ppm; wheat, straw at 7.0 ppm; aspirated grain fractions at 10.0 ppm; meat of cattle, goats, hogs, horses, sheep at 0.2 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by zeta-cypermethrin and its inactive R-isomers were discussed in detail in the Federal Register notice of September 17, 2001 (66 FR 47979) (FRL-6801-1). In that document (Unit III.), the toxicological profile for zeta-cypermethrin and cypermethrin was fully discussed. The observed health effects as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) were presented in tables sorted by the EPA Guideline number for each study type. The presentation of the toxicological profile for zeta-cypermethrin in the September 17, 2001 Federal Register remains current and can, therefore, be referenced as background in relation to the tolerances being established with this document.

Zeta-cypermethrin is an enriched isomer of cypermethrin. In order to select toxicity endpoints for the purposes of risk assessment, bridging data on zeta-cypermethrin were submitted so that the toxicity of zeta-cypermethrin could be compared with that of cypermethrin and the data bases could be combined to form one complete data base for both chemicals. In the selection of toxicity endpoints, studies conducted with zeta-cypermethrin were used wherever possible.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for zeta-cypermethrin and its inactive R-isomers used for human risk assessment was presented in Table 3 in Unit III.B. of the Federal Register of September 17, 2001 (66 FR 47979) (FRL-6801-1). The selected hazard endpoints used in the risk assessment to support the tolerances published on September 17, 2001, remain current. Therefore, the same toxicological dose and hazard endpoints are used in the risk assessment for the tolerances established through this rulemaking. For this reason, the detailed table listing the selected endpoints is not being republished with this final rule. Refer to the September 17, 2001 Federal Register cited above to review the hazard endpoints selected for zeta-cypermethrin.

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.418) for the residues of zeta-cypermethrin and its inactive R-isomers, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from zeta-cypermethrin and its inactive R-isomers in food as follows:

Zeta-cypermethrin is an enriched-enantiomer verson of the insecticide cypermethrin. Both cypermethrin and zeta-cypermethrin are mixtures of eight isomers, with the active components consisting of the S-enantiomers (“S” configuration at the cyano bearing carbon). The two differ in that cypermethrin has a 50:50 R/S ratio whereas zeta-cypermethrin is enriched in the S-enantiomers with a ratio of 90:10 of the S/R. The enriched isomer formulation provides for similar insect control but at lower use rates. Since use of both cypermethrin and zeta-cypermethrin result in human exposure to the same eight isomers, dietary and non-dietary (residential) aggregate risk assessment was conducted by adding the uses of the two chemicals.

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: Tolerance level residues and 100% crop treated have been used in these analyses for all commodities having either established or proposed tolerances of cypermethrin or zeta-cypermethrin. In cases where a commodity has an established tolerance for cypermethrin and a proposed tolerance for zeta-cypermethrin, the larger of the two values was used in the assessment.DEEM default processing factors were used for all commodities in this assessment. All exposures are Tier 1 estimates that are extremely conservative and likely overestimate actual dietary exposure.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the DEEM TM analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Tolerance-level residues and 100% crop treated have been used in these analyses for all commodities having either established or proposed tolerances of cypermethrin or zeta-cypermethrin. For chronic risk assessments, residue estimates for foods (e.g., apples) or food-forms (e.g., apple juice) of interest are multiplied by the averaged consumption estimate of each food/food-form of each population subgroup. Exposure estimates are expressed in mg/kg bwt/day and as a percent of the cPAD.

As shown by the summarized acute and chronic results in Tables 1 and 2, all risk estimates fall below EPA's level of concern (≥ 100% PAD). All exposures are Tier 1 estimates that are extremely conservative and likely overestimate actual dietary exposure. Refinements to the analyses in the form of percent crop treated considerations and/or anticipated residues would likely reduce the exposure and risk estimates for zeta-cypermethrin.

iii. Cancer . Cypermethrin has been classified as a Category C, possible human carcinogen, based on an increased incidence of lung adenomas and adenomas plus carcinomas combined in female mice (Cancer Peer Review Committee, 1988). The evidence was not considered strong enough to warrant a quantitative estimation of human risk. Cypermethrin has not been classified under the more current, Proposed Guidelines for Carcinogen Risk Assessment (April 10, 1996). Because zeta-cypermethrin is an enriched isomer of cypermethrin, it is also classified as a Category C carcinogen and a RfD approach was recommended for human risk assessment purposes.

2. Dietary exposure from drinking water . Based on the available data, cypermethrin/zeta-cypermethrin is a moderately persistent chemical that primarily degrades by photolysis in water and biodegradation. Depending on the environmental circumstances, it may persist for periods of months post-treatment. Cypermethrin is tightly bound to soil particles and is not likely to move to ground waters. However, the degradate dichlorovinyl acid (DCVA) is mobile and likely to reach ground waters. Additional information about the mobility of this degradate has been requested. Cypermethrin can contaminate surface waters through spray drift. Under some conditions it may also have a potential for runoff into surface waters (primarily through erosion), for several months post-application. Since zeta-cypermethrin is preferentially associated to the soils, the fraction of the chemical in the water column should be small. In addition, it is expected that treatment of drinking water would remove substantial portions of cypermethrin/zeta-cypermethrin present in water. Although the Agency has not addressed residues of DCVA in water, the Agency has concluded that DCVA does not need to be included in the dietary risk for food.

The Agency uses the First Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The SCI-GROW model is used to predict pesticide concentrations in shallow ground water. For a screening-level assessment for surface water, EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

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

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

Based on the FIRST and SCI-GROW models, the EECs of zeta-cypermethrin and its inactive R-isomers for acute exposures are estimated to be 8.9 parts per billion (ppb) for surface water and 0.006 ppb for ground water. The EECs for chronic exposures are estimated to be 0.46 ppb for surface water and 0.006 ppb for ground water. These values generally represent upper-bound estimates of the concentrations that might be found in surface water and ground water due to the use of cypermethrin on Brassica vegetables, which has the highest application rate among both cypermethrin and zeta-cypermethrin on all crops over which the chemicals are applied.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Zeta-cypermethrin and its inactive R-isomers is not registered for use on any sites that would result in residential exposure. However, cypermethrin does have indoor and outdoor residential uses (zeta-cypermethrin is an enriched-enantiomer version of the insecticide cypermethrin). The analytical method does not distinguish cypermethrin from zeta-cypermethrin, and the toxicological endpoints are the same. Therefore, dietary and non-dietary residential aggregate risk assessment is conducted by adding the uses of the two chemicals.

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

EPA does not have, at this time, available data to determine whether zeta-cypermethrin and its inactive R-isomers has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, zeta-cypermethrin and its inactive R-isomers does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that zeta-cypermethrin and its inactive R-isomers has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . The data demonstrated no indication of increased sensitivity of rats or rabbits to in utero and or postnatal exposure to either zeta-cypermethrin or cypermethrin. In the prenatal developmental toxicity studies in rats, there was no evidence of developmental toxicity at the highest does tested (35 mg/kg/day). Maternal toxicity (decreased body weight gain (both chemicals), and food consumption, ataxia, urine and feces-stained for (zeta-cypermethrin) was observed at the LOAEL of 25 mg/kg/day. The maternal NOAELs were established at 12.5 mg/kg/day for zeta-cypermethrin and 17.5 mg/kg/day for cypermethrin. In the definitive rabbit developmental toxicity study conducted with cypermethrin, the maternal LOAEL was 450 mg/kg/day based on decreased body weight gain. No developmental toxicity was observed at dose levels up to 700 mg/kg/day. In the 2-generation reproduction study in rats conducted with zeta-cypermethrin, off-spring toxicity (decreased pup weight gain during lactation) was observed at the same treatment level which resulted in parental systemic toxicity (NOAEL: 27 mg/kg/day; LOAEL: 45 mg/kg/day). In the definitive multigeneration reproduction study conducted with cypermethrin, the parental NOAEL/LOAEL is lower than the pup NOAEL/LOAEL, both based on decreased in body weight gain (2.5/7.5 mg/kg/day for the parents versus 7.5/37.5 mg/kg/day for the pups).

3. Conclusion . There is a complete toxicity data base for zeta-cypermethrin and its inactive R-isomers and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The safety factor can be removed for zeta-cypermethrin and its inactive R-isomers because: (1) There is no indication of quantitative or qualitative increased susceptibility of rats or rabbits to in utero and/or postnatal exposure; (2) the requirement of a developmental neurotoxicity study is not based on criteria reflecting special concern for the developing fetuses or young which are generally used for requiring a developmental neurotoxicity study - and a safety factor (e.g., neuropathy in adult animals; central nervous system malformation following prenatal exposure; brain weight or sexual maturation changes in offspring; and/or functional changes in offspring) and therefore does not warrant an FQPA safety factor; and (3) the dietary (food and drinking water) and non-dietary exposure assessment will not underestimate the potential exposures for infants and children.

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

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

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to zeta-cypermethrin and its inactive R-isomers will occupy 22% of the aPAD for the U.S. population, 21% of the aPAD for females 13 years and older, 24% of the aPAD for infants ( > 1 year old), and 33% of the aPAD for children (1-6 years). In addition, there is potential for acute dietary exposure to zeta-cypermethrin and its inactive R-isomers in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 3:

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to zeta-cypermethrin and its inactive R-isomers from food will utilize 12% of the cPAD for the U.S. population, 11% of the cPAD for infants ( < 1 year old) and 23% of the cPAD for children (1-6 years). There are no residential uses for zeta-cypermethrin and its inactive R-isomers that result in chronic residential exposure to zeta-cypermethrin and its inactive R-isomers. However, cypermethrin does have indoor and outdoor residential uses (zeta-cypermethrin is an enriched-enantiomer version of the insecticide cypermethrin). The analytical method does not distinguish cypermethrin from zeta-cypermethrin, and the toxicological endpoints are the same. Therefore, dietary and non-dietary residential aggregate risk assessment is conducted by adding the use of the two chemicals. Based on the use pattern, chronic residential exposure to residues of zeta-cypermethrin and its inactive R-isomers is not expected. In addition, there is potential for chronic dietary exposure to zeta-cypermethrin and its inactive R-isomers in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 4:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Zeta-cypermethrin and its inactive R-isomers is not registered for use on any sites that would result in residential exposure; however, cypermethrin does have indoor and outdoor residential uses (zeta-cypermethrin is an enriched-enantiomer version of the insecticide cypermethrin). Cypermethrin registered residential uses constitute short- and intermediate-term exposure scenarios; endpoints have been selected for short- and intermediate-term incidental oral and inhalation exposures, and the acceptable MOEs for short- and intermediate-term exposures are 100. Since the toxicological effects through the inhalation exposure route are similar to those toxicological effects through the oral routes, short-term aggregate risk assessment was conducted adding inhalation, oral non-dietary exposure, and average food and water exposure.

Since all the acceptable MOEs are at the same level, the aggregate risks for population subgroup can be estimated by calculating aggregate Margin of Exposure values (MOE aggregate ). MOE aggregate = 1/MOE I + 1/MOE D + 1/MOE O +1/MOE food + 1/MOE water where I = inhalation, D = dermal (no dermal endpoints were selected), O = non-dietary oral, MOE food = average food from the chronic DEEM analysis.

As residue values in water from monitoring data are not available, therefore, as with the acute dietary aggregate risk estimate for the short- and intermediate-term aggregate risk assessments, the DWLOCs have to be back calculated. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 1,500 for adult males, 1,700 for adult females, 830 for a child, and 1,700 for infants. These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of zeta-cypermethrin and its inactive R-isomers in ground and surface water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 5:

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Zeta-cypermethrin and its inactive R-isomers is not registered for use on any sites that would result in residential exposure; however, cypermethrin does have indoor and outdoor residential uses (zeta-cypermethrin is an enriched-enantiomer version of the insecticide cypermethrin). Cypermethrin registered residential uses constitute short- and intermediate-term exposure scenarios; endpoints have been selected for short- and intermediate-term incidental oral and inhalation exposures, and the acceptable MOEs for short- and intermediate-term exposures are 100. Since the toxicological effects through the inhalation exposure route are similar to those toxicological effects through the oral routes, short-term aggregate risk assessment was conducted adding inhalation, oral non-dietary exposure, and average food and water exposure.

Since all the acceptable MOEs are at the same level, the aggregate risks for the population subgroups can be estimated by calculating aggregate Margin of Exposure values (MOE aggregate ). MOE aggregate = 1/MOE I + 1/MOE D + 1/MOE O + 1/MOE food +1/MOE water .

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 640 for adult males, 740 for adult females, 300 for child, and 530 for infants. These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, intermediate-term DWLOCs were calculated and compared to the EECs for chronic exposure of zeta-cypermethrin and its inactive R-isomers in ground and surface water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect intermediate-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 6:

5. Aggregate cancer risk for U.S. population . Cypermethrin/zeta-cypermethrin has been classified as a Category C carcinogen, based on an increased incidence of lung adenomas and adenomas plus carcinomas combined in female mice. However, the evidence was not considered strong enough to warrant a quantitative estimation of human risk. An RfD approach was recommended for human risk assessment purposes. Dietary risk concerns due to long-term consumption of zeta-cypermethrin are adequately addressed in the chronic exposure analysis. For the U.S. population only 11% of RfD is occupied by chronic food and water exposure.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to zeta-cypermethrin and its inactive R-isomers residues.

Adequate enforcement methods are available for determination of cypermethrin residues in plants and animal products in PAM II (Method 1). This method involves initial acetone-hexane extraction, followed by partitioning with water. The organic layer is evaporated, then redissolved in cyclohexane-methylene chloride and passed through a gel permeation column. The eluate is evaporated, redissolved in hexane and passed through a Florisil column. Cypermethrin residues are analyzed by gas chromatography (GC) with an electron capture detector (ECD). Since zeta-cypermethrin is an isomer enriched form of cypermethrin and the zeta-cypermethrin is an enriched form of cypermethrin, and the PAM II method is not stereospecific, this method is considered adequate for enforcement of the proposed tolerances of zeta-cypermethrin.

There are no specific Codex maximum residue limits (MRLs) for zeta-cypermethrin, but there are Codex MRLs for cypermethrin. The proposed or recommended U.S. tolerances for residue zeta-cypermethrin in/on soybean seeds (0.05 ppm), eggs (0.05 ppm), dried shelled peas and beans (0.05 ppm), and meat byproducts (0.05 ppm) are equivalent to their respective Codex MRLs. The recommended U.S. tolerance for fruiting vegetables (0.2 ppm) is also equivalent to the Codex MRL for egg plants, but is lower than Codex MRLs for tomatoes and peppers (0.5 mg/kg). Recommended U.S. tolerances for meat (cattle, goats, hogs, horses, and sheep) and sorghum stover will be increased to 0.2 and 5.0 ppm, respectively to match their equivalent Codex MRLs. The recommended U.S. tolerances for milk and wheat hay and straw are higher than their equivalent Codex MRLs and cannot be harmonized. The recommended U.S tolerance for succulent shelled peas and beans cannot be harmonized with the Codex MRLs for common beans and peas since the crop groups are defined differently. The Codex definitions are based on the crop being a pea or a bean, whereas the U.S. groups are based on whether the raw agricultural commodity is shelled or the pod is consumed.

Therefore, the tolerance is established for residues of zeta-cypermethrin and its inactive R-isomers, Z-cypermethrin (S-cyano (3-phenoxyphenyl) methyl (+/-) ( cis - trans 3-(2,2-dichloro, in or on edible podded legume vegetables (Crop subgroup 6A) at 0.5 ppm; succulent, shelled peas and beans (Crop subgroup 6B) at 0.1 ppm; dried, shelled peas and beans, except soybean (Crop subgroup 6C) at 0.05 ppm; soybean, seed at 0.05 ppm; fruiting vegetables, except cucurbits (Crop group 8) at 0.2 ppm; sorghum, grain at 0.5 ppm; sorghum, forage at 0.1 ppm; sorghum, stover at 5.0 ppm; wheat, grain at 0.2 ppm; wheat, forage at 3.0 ppm; wheat, hay at 6.0 ppm; wheat, straw at 7.0 ppm; aspirated grain fractions at 10.0 ppm; meat of cattle, goats, hogs, horses, sheep at 0.2 ppm.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301207 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 15, 2002.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301207, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

This is a summary of the Commission's Third Report and Order and Second Order on Reconsideration in CC Docket No. 96-98 and CC Docket No. 99-200 (Third Report and Order), adopted on December 12, 2001, and released on December 28, 2001. The full text of this document is available for inspection and copying during normal business hours in the Commission Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may also be obtained through the World Wide Web at http://www.fcc.gov/Bureaus/CommonCarrier/Orders, or may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail at qualexint@aol.com.

1. With the rules adopted in the Third Report and Order, the Commission creates national standards to address numbering resource optimization. The Third Report and Order, among other things: (1) Declines to require paging providers and providers that do not have local number portability (LNP) and are operating outside the top 100 metropolitan statistical areas (MSA) to participate in thousands-block number pooling; (2) lifts the ban on service-specific and technology-specific overlays (collectively, specialized overlays or SOs), and provides that the Commission will consider petitions filed by state commissions for authority to implement SOs on a case-by-case basis; (3) subjects carriers that violate numbering requirements or fail to cooperate with an auditor conducting a “for cause” or random audit to the denial of requests for numbering resources; (4) allows incumbent local exchange carriers (LECs) subject to rate-of-return or price cap regulation to recover their carrier-specific costs directly related to national thousands-block number pooling through the existing cost recovery mechanisms of rate-of-return or price cap adjustments, and allows all other carriers to recover their carrier-specific costs related to pooling in any manner allowed under the Act; and (5) clarifies that all non-exempt carriers operating within the top 100 MSAs must be LNP-capable and must participate in thousands-block number pooling.

2. The Third Report and Order also finds that state commissions should be allowed to have password-protected access to the North American Numbering Plan Administration (NANPA) database to obtain data concerning area codes within their state.

3. The rules adopted herein facilitate increased carrier accountability and incentives to use numbers efficiently, and promote the judicious conservation of numbering resources.

4. This Third Report and Order contains some new and/or modified information collections, which will be submitted to OMB for approval, as prescribed by the Paperwork Reduction Act.

5. As required by the Regulatory Flexibility Act, as amended, (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Second Report and Order, Order on Reconsideration in CC Docket No. 96-98 and CC Docket No. 99-200, and Second Further Notice of Proposed Rulemaking (Second Report and Order), 66 FR 9528 (Feb. 8, 2001). The Commission sought written public comment on the proposals in the Second Report and Order, including comment on the IRFA. No comments received addressed the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

6. In the Second Report and Order, we sought public comment on (a) the relative advantages of SOs as opposed to all-services overlays, and the conditions under which SOs, if adopted, should be implemented to promote competitive equity, maximize efficient use of numbering resources, and minimize customer inconvenience; (b) whether carriers should be held accountable when related carriers fail to comply with reporting requirements; (c) whether state commissions should be granted direct, password-protected access to the mandatory reporting data received by the NANPA; (d) whether to allow extensions (for a fee or otherwise) on the 180-day reservation period for numbers; (e) what enforcement mechanisms should be applied when a carrier either fails to cooperate with an audit, or fails to resolve identified areas of noncompliance; (f) whether state commissions should be allowed to conduct audits; (g) the costs associated with thousands-block number pooling; (h) whether to require carriers to become LNP-capable for the purpose of participating in thousands-block number pooling; and (i) whether a “safety valve” should be established for carriers that need additional numbering resources, but fail to meet the utilization threshold in a given rate center.

7. In this Third Report and Order, we continue efforts to utilize efficiently the numbering resources in the North American Numbering Plan (NANP). Our goal with this Third Report and Order is to build upon previous successes in working with the state commissions and the telecommunications industry to ensure that the limited numbering resources of the NANP do not exhaust prematurely, and to ensure that all carriers have the numbering resources they need to compete in the telecommunications marketplace. In particular, we address issues raised in the Second Report and Order and several petitions for reconsideration and/or clarification of the Report and Order and Further Notice of Proposed Rulemaking, 65 FR 37703 (June 16, 2000), and the Second Report and Order. In addition, we also clarify, on our own motion, certain aspects of our numbering resource optimization rules and local number portability requirements.

8. In a recent letter, the Small Business Administration (SBA) contends that in the Final Regulatory Flexibility Analysis for the Second Report and Order the Commission failed to “* * * include a description of telecommunications service providers that are directly affected by the audit provisions * * *” and believes that the “* * * oversight may be due to the inconsistency in the text of the Order itself. Under the Commission's numbering rules, carriers and service providers are two separate classes.” The SBA then notes that the terms “carrier” and “service provider” were used interchangeably within the audit provisions of the Second Report and Order.

9. Although the terms “carrier” and “service provider” were used interchangeably within the audit provisions, the rule on auditing procedures in section 52.15(k) of the Commission's rules (in Appendix A of the Second Report and Order ) clearly applies to telecommunications service providers. As discussed in section 52.5(i) of the Commission's numbering rules, a service provider is an “* * * entity that receives numbering resources from the NANPA * * *” Thus, given our findings that the rule is clear, we conclude that the description of telecommunications service providers in the FRFA for the Second Report and Order was adequate, and that no clarifications are needed in the FRFA.

10. In the SBA Letter, the SBA states that, in the FRFA for the Second Report and Order, the Commission fails to “* * * adequately consider alternatives to the audit program that would minimize the impact on small businesses.” In the FRFA, the Commission is required to discuss significant alternatives that would change the impact on small businesses. Because we did not identify any significant alternatives to the rules that would influence the impact on small businesses, no significant alternatives were discussed in the FRFA for the Second Report and Order. The Commission also notes that the small businesses that commented on our audit proposal generally were in favor of audits.

11. Commenters responded to several issues addressed in the Second Report and Order that concern small entities. Their opinions are summarized below. In addition, the Commission has considered any potential significant economic impact of the rules on small entities.

12. Thousands-Block Number Pooling for Non-LNP Capable Carriers. Commenters generally agree that the costs to small and rural carriers to participate in thousands-block number pooling would outweigh any benefits derived from the pooling requirements. The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) fears that the costs may be so prohibitive as to delay the implementation of advanced services to rural subscribers. The Commission agrees with commenters that there is insufficient evidence in the record to conclude that requiring non-LNP capable carriers to participate in pooling would result in significant number resource savings. Data from the Local Exchange Routing Guide (LERG) shows that in the approximately 2,012 rate centers in the 180 MSAs beyond the largest 100, approximately 1,320 are rate centers where there are no competing service providers and approximately 300 are rate centers where there is only one competing service provider. Because these carriers hold relatively few numbering resources, we agree that requiring them to participate in pooling would not result in significant numbering resource optimization benefits.

13. Independent State Commissions' Authority to Conduct Audits. One commenter expressed concern that giving states individual authority to conduct audits may expose carriers to two different standards. It predicts that this result would impose costs and burdens on small carriers that outweigh the benefits of the additional audits. The Commission declined to give states the independent authority to conduct audits, concluding that most of the audits that states would be given authority to conduct would serve the same purpose as the Commission audits, thus posing the potential burden of overlapping audits that would outweigh the benefits of the additional audits. It is the Commission's expectation, however, that the Commission audit staff will cooperate with state commissions, including coordinating compliance and enforcement activities and sharing information gathered during the course of the audits. In addition, this Third Report and Order does not modify a state commission's authority to conduct audits under state law.

14. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” The term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for its activities. 5 U.S.C. 601(3). Under the Small Business Act, a “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 15 U.S.C. 632.

15. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide appears to be data the Commission publishes annually in its Telecommunications Provider Locator report, derived from filings made in connection with the Telecommunications Relay Service (TRS). According to data in the most recent report, there are 5,679 interstate service providers. These providers include, inter alia, local exchange carriers, wireline carriers and service providers, interexchange carriers, competitive access providers, operator service providers, pay telephone operators, providers of telephone service, providers of telephone exchange service, and resellers.

16. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

17. Total Number of Telephone Companies Affected. The Census Bureau reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including LECs, interexchange carriers, competitive access providers, operator service providers, pay telephone operators, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” It seems reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by these rules.

18. Federal Cost Recovery. In the Third Report and Order, the Commission establishes a federal cost recovery mechanism under which price cap LECs may recover their extraordinary carrier-specific costs directly related to thousands-block number pooling through an exogenous adjustment to access charges. This may require carriers to submit cost analyses demonstrating that pooling results in a net cost increase rather than a cost reduction to qualify for the exogenous adjustment to access charges.

19. Safety Valve. The Commission establishes a safety valve in the Third Report and Order to ensure that carriers experiencing rapid growth in a given market will be able to meet customer demand. Carriers may demonstrate the need for the safety valve by demonstrating to their state commission that: (1) The carrier will exhaust its numbering resources in a market or rate area within three months (in lieu of the 6 months-to-exhaust requirement); and (2) projected growth is based on the carrier's actual growth in the market or rate area, or on the carrier's actual growth in a reasonably comparable market, but only if that projected growth varies no more than 15 percent from historical growth in the relevant market. A carrier may also be granted relief if it demonstrates that it has received a customer request for numbering resources in a given rate center that it cannot meet with its current inventory. If the customer request is withdrawn or declined, the requesting carrier must return the numbering resources to the NANPA or Pooling Administrator, and may not retain the numbering resources to serve other customers without first meeting our growth numbering resource requirements.

20. Service-Specific and Technology—Specific Area Code Overlays (collectively, specialized overlays or SOs). State commissions seeking to implement a SO will be required to seek authority on a case-by-case basis from the Commission. State commissioners should discuss why the numbering resource optimization benefits of the proposed SO would be superior to implementation of an all-services overlay. State commissions should also specifically address the following: (1) The technologies or services to be included in the SO; (2) the geographic area to be covered; (3) whether the SO will be transitional; (4) when the SO will be implemented and, if a transitional SO is proposed, when the SO will become an all-services overlay; (5) whether the SO will include take-backs; (6) whether there will be 10-digit dialing in the SO and the underlying area code(s); (7) whether the SO and underlying area code(s) will be subject to rationing; and (8) whether the SO will cover an area in which pooling is taking place.

21. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

22. Thousands-Block Number Pooling for Non-LNP Capable Carriers. In this Third Report and Order, we decline to extend pooling requirements to paging carriers and non-LNP capable carriers outside of the largest 100 MSAs that have not received a request to deploy LNP from a competing carrier. We believe the costs associated with the alternative of requiring all carriers, including small entities, to participate in pooling would greatly outweigh any numbering resource optimization benefits. In addition, these costs imposed on smaller and rural carriers may delay efforts in bringing advanced services to rural subscribers. Thus, we reaffirm our current rules that certain carriers, e.g., paging carriers and carriers outside of the largest 100 MSAs who have not received a request to deploy LNP from a competing carrier, are exempted from pooling requirements.

23. Service-Specific and Technology-Specific Area Code Overlays. In this order, we lift the prohibition on SOs and will consider proposals submitted by state commissions to implement SOs on a case-by-case basis. Such an approach allows state commissions to consider the surrounding local circumstances, including the needs of small, local businesses, in deciding whether or how to provide area code relief. In the alternative, we examined a requirement mandating that state commissions impose all-services area code overlays as the primary method for area code relief. However, the Commission believes that states should have the flexibility to determine the best form of area code relief.

24. The Commission will send a copy of this Third Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of this Third Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of this Third Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

25. Pursuant to Sections 1, 3, 4, 201-205, 251 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 153, 154, 201-205, and 251, this Third Report and Order is hereby Adopted and Part 52 of the Commission's rules Are Amended and Adopted as set forth in the rule changes.

26. The policies, rules and requirements adopted herein are adopted and shall be effective March 14, 2002, except for §§ 52.19(c)(3)(i) and 52.19(c)(4), which contain information collection requirements that have not been approved by OMB. The Commission will publish a document in the Federal Register announcing the effective date.

27. Incumbent local exchange carriers seeking to recover carrier-specific costs directly related to national thousands-block number pooling as described herein may file the necessary tariffs to take effect no earlier than April 2, 2002.

28. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Third Report and Order and Second Order on Reconsideration in CC Docket No. 96-98 and CC Docket No. 99-200, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Order on Reconsideration in CC Docket Nos. 96-45, 96-98 released on January 29, 2002. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554.

1. In this document, the Commission dismisses the petitions for reconsideration of the Universal Service First Report and Order, 62 FR 32862 (June 17, 1997), Local Competition First Report and Order, 61 FR 45476 (August 29, 1996) and Local Competition Second Report and Order, 61 FR 47284 (September 6, 1996) filed by those parties that have not indicated an intent to pursue their respective petitions.

2. To the extent that parties have not indicated an intent to pursue their respective petitions for reconsideration of the Universal Service First Report and Order, 62 FR 32862 (June 17, 1997), Local Competition First Report and Order, 61 FR 45476 (August 29, 1996) and Local Competition Second Report and Order, 61 FR 47284 (September 6, 1996) in response to the public notices, the Commission deems such petitions withdrawn and dismiss these petitions. The passage of time and intervening developments have rendered many such petitions moot or irrelevant in light of intervening events.

3. The Commission notes that several parties have refreshed the record in response to the public notices. The Commission will proceed to address these petitions for reconsideration in upcoming orders.

4. Pursuant to the authority contained in sections 1 and 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 151 and 154(i), and § 1.429 of the Commission's rules, the petitions for reconsideration of the Universal Service First Report and Order, Local Competition First Report and Order, and Local Competition Second Report and Order, as listed in the attachments to this document, are dismissed as of February 12, 2002.