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 series airplanes; certain Model A300 F4-605R airplanes and Model A300 B4-600 and A300 B4-600R series airplanes; and certain Model A310 series airplanes; was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on January 2, 2002 (67 FR 40). That action proposed to continue to require repetitive inspections to detect damage of the fillet seals and feeder cables, and of the wiring looms in the wing/pylon interface area; and corrective action, if necessary. That action also proposed to provide for optional terminating action for the repetitive inspections. Additionally, that action proposed to require that actions be done in accordance with newly revised service bulletins, and to revise the applicability.

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 107 airplanes of U.S. registry will be affected by this AD.

It will take approximately 6 work hours per airplane to inspect the seals/cables at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this required inspection on U.S. operators is estimated to be $38,520, or $360 per airplane, per inspection cycle.

It will take approximately 5 work hours per airplane to inspect the wiring looms and apply the protection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this required inspection on U.S. operators is estimated to be $32,100, or $300 per airplane, per inspection cycle.

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

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

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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 Kansas program on January 21, 1981. You can find background information on the Kansas program, including the Secretary's findings, the disposition of comments, and conditions of approval in the January 21, 1981, Federal Register (46 FR 5892). You can also find later actions concerning Kansas' program and program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

By letter dated October 9, 2001 (Administrative Record No. KS-622), Kansas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Kansas sent the amendment in response to deficiencies that we identified in Kansas' revegetation guidance document in a previous final rule on August 19, 1992 (57 FR 37430). The amendment also included changes made at Kansas' own initiative. Kansas amended the Kansas revegetation guidance document entitled “Revegetation Standards for Success and Statistically Valid Sampling Techniques for Measuring Revegetation Success.”

We announced receipt of the amendment in the November 30, 2001, Federal Register (66 FR 59751). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 31, 2001. We received comments from one industry group and one Federal agency.

During our review of the amendment, we identified concerns at Part I, Section I.6.b, about other plant species (species not approved in the permit) that are allowed for determining the acceptable percentage of ground cover for various postmine land uses. The other plant species are listed in Appendix A of Kansas' revegetation success guidelines. We notified Kansas of this concern in a telephone conference on November 6, 2001 (Administrative Record No. KS-622.1A).

By letter dated November 29, 2001 (Administrative Record No. KS-622.2), Kansas sent us a letter from the Natural Resources Conservation Service that stated it concurred with the use of the plant specifies listed in Appendix A for determining ground cover success. Appendix A lists the acceptable plant species by land use (including legume, grass, tree, shrub, and vine) that permittees may use to meet Kansas' productivity and ground cover success standards when reclaiming mined land.

Kansas also submitted revisions to its revegetation guidance document on January 8, 2002 (Administrative Record No. 622.7), in response to comments received from Triad Environmental Services and the Natural Resources Conservation Service. These revisions are discussed in section IV, “Summary and Disposition of Comments.”

Because the additional information and revisions merely clarified certain provisions of Kansas' amendment, we did not reopen the public comment period.

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

The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that each regulatory authority select revegetation success standards and statistically valid techniques for determining revegetation success and include them in its approved regulatory program. Kansas sent us its revised revegetation guidance document to satisfy this requirement. As required by the Federal regulations at 30 CFR 816.116(a)(2), 817.117(a)(2), and 823.15(b), Kansas prescribed success standards in its guidance document that include criteria representative of unmined lands in the area being reclaimed, using parameters of ground cover, production, or stocking relevant to the approved postmining land use. The standards, criteria, and parameters reflect the extent of cover, species composition, and soil stabilization requirements of the Federal regulations at 30 CFR 816.111 and 817.111. The revised guidance document also specifies the procedures to be used for sampling, measuring, and analyzing vegetation parameters. Use of these procedures will ensure consistent, objective collection of vegetation data. Therefore, we are approving the revisions to Kansas' revegetation guidance document as described below.

The preface to Kansas' guidance document discusses the purpose of the document, the geographic region the document concentrates on, and the State regulations covered by the document. Kansas removed language from the preface that we did not approve in the August 19, 1992, final rule decision. This language appeared to exempt specific permits from certain requirements of Kansas' guidance document.

We find that with the removal of the disapproved language, the preface to Kansas' guidance document meets the requirements of the Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1).

Kansas defined the following terms that are specific to the Kansas revegetation guidance document: Animal Unit Month (A.U.M.); Cropland; Desirable; Diverse; Effective; Forage; Global Positioning System (GPS); Historically Cropped; Kansas Department of Wildlife and Parks (KDWP); Kansas State University (KSU); Natural Resources Conservation Service (NRCS); Permanent; Previously Mined; Prime Farmland; Surface Mining Section (SMS); and Total Cover.

The Federal regulations do not contain all of the definitions proposed by Kansas. However, we find that Kansas' definitions for cropland, historically cropped, previously mined, and prime farmland are substantively the same as the counterpart Federal definitions at 30 CFR 701.5. We further find that the other definitions are not inconsistent with other Federal definitions or the requirements for revegetation success at 30 CFR 816.116(a)(2), 817.116(a)(2), 816.111, or 817.111.

Kansas added three new tables that contain a summary of the vegetation requirements that are detailed in the guidance document. Table 1 contains a summary of the productivity and ground cover vegetation requirements for Phase II and Phase III bond release of pasture land and grazing land; wildlife habitat, recreation, shelter belts, and forest products; and industrial, commercial, or residential land uses. Table 2 lists a summary of the productivity and ground cover vegetation requirements for Phase II and Phase III bond release of prime farmland. Table 3 contains a summary of the productivity and ground cover vegetation requirements for Phase II and Phase III bond release of cropland.

We find that these summary tables meet the requirements of the Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1).

Kansas consolidated the substantive provisions of its approved ground cover success standards for all land uses in Part I. Section A provides the standard for ground cover on prime farmland, cropland, and pasture/grazing land. Section B discusses the standard for ground cover on previously mined areas. Section C provides the standard for ground cover on wildlife habitat, recreation, shelter belt, and forest product land use areas that have topsoil. Section D contains standards for ground cover on industrial, commercial, or residential land use areas that have topsoil. Sections E and F provide general information on pre-mining ground cover sampling criteria and techniques. Section G contains specific pre-mining ground cover sampling techniques. Section H provides specific post-mining ground cover sampling criteria. Finally, Section I covers specific post-mining ground cover sampling techniques.

The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success must be selected by the regulatory authority and included in an approved program. The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that standards for success must include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover. Ground cover will be considered equal to the approved success standard when they are not less than 90 percent of the success standard. The sampling techniques for measuring success must use a 90 percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). The Federal regulations at 30 CFR 816.116(b) and 817.116(b) contain the minimum success standards for ground cover for each land use. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) contain the minimum period of extended responsibility for successful revegetation. We conducted a technical review of Part I and found that Kansas' guidelines for ground cover are no less effective than the requirements of these Federal regulations.

Kansas revised and consolidated the substantive provisions of its approved forage production success standards for prime farmland, cropland, pasture land, and grazing land in Part II. Section A discusses the use of the United States Department of Agriculture, Natural Resources Conservation Service (USDA-NRCS) soil survey database for determining productivity of cool season grass seed mixtures. This database lists crop yields by the soil mapping units contained in the published county soil surveys for Kansas. Section A also discusses the USDA-NRCS database in Technical Guide Notice KS-145. This database is used for determining productivity of native grass seed mixtures. Section B contains information on methods of calculation using the Animal Unit Month (A.U.M.) values listed in the USDA-NRCS soil surveys for Kansas. Kansas reevaluated the A.U.M. value used in its previous guidance document for forage production. The A.U.M. value is the monthly average pounds of forage needed to support each 1,000 pounds of cattle. Kansas changed this value from 900 pounds to 760 pounds of dry forage based upon a recommendation by the Natural Resources Conservation Service (Administrative Record No. KS-622.8). Section C provides productivity standards for prime farmland forage crops. Section D covers the productivity standards for cropland forage crops. Section E covers the productivity standard for previously mined lands reconstructed to pasture and grazing land. Section F contains information on the productivity standards for pasture and grazing land. Section G discusses the methods of data collection, including use of representative areas with test plots or whole field harvesting. Kansas added whole field harvesting to the methods of data collection for forage. Section H contains specific forage crop production sampling criteria. Finally, Section I covers specific forage crop production sampling techniques.

The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success must be selected by the regulatory authority and included in an approved program. The Federal regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 823.15(b) require that standards for success must include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of production. Production for prime farmland must meet 100 percent of the success standard.

Production for cropland, pasture land, and grazing land will be considered equal to the approved success standard when it is not less than 90 percent of the success standard. The sampling techniques for measuring success must use a 90 percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). The Federal regulations at 30 CFR 816.116(b) and 817.116(b) contain the minimum success standards for cropland, pasture land, and grazing land and 30 CFR 823.15(b) contains the success standards for prime farmland. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) contain the minimum period of extended responsibility for successful revegetation. We conducted a technical review of Part II and found that Kansas' guidelines for forage production are no less effective than the requirements of these Federal regulations.

Kansas revised and consolidated the substantive provisions of its approved row crop production success standards for prime farmland and cropland in Part III. Kansas also added corn as an acceptable row crop under specified conditions. Section A discusses the acceptable row crops for revegetation productivity. Section B contains information on the method of row crop production success standard calculations. Section C provides row crop sampling criteria. Section D contains the following sampling methods for data collection involving representative areas: test plots, whole field sampling, and whole field harvesting. Section E provides productivity sampling criteria for prime farmland row crops. Section F discusses productivity sampling criteria for cropland row crops. Finally, Section G contains row crop sampling techniques involving test plots and whole field sampling for grain sorghum (milo), wheat, soybeans, and corn.

In response to deficiencies that we identified in the August 19, 1992, final decision on Kansas' current revegetation success guidelines, Kansas revised its row crop sampling techniques for grain sorghum and wheat. To address the deficiencies, Kansas added provisions that require operators to make determinations of statistical sample adequacy based on sample weights corrected to a standard moisture content.

The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success must be selected by the regulatory authority and included in an approved program. The Federal regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 823.15(b) require that standards for success must include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of production. Production for prime farmland must meet 100 percent of the success standard. Production for cropland will be considered equal to the approved success standard when it is not less than 90 percent of the success standard. The sampling techniques for measuring success must use a 90 percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). The Federal regulations at 30 CFR 816.116(b) and 817.116(b) contain the minimum success standards for cropland and 30 CFR 823.15(b) contains the success standards for prime farmland. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) contain the minimum period of extended responsibility for successful revegetation. We conducted a technical review of Part III and found that Kansas' guidelines for row crop production are no less effective than the requirements of these Federal regulations.

Kansas consolidated its productivity success standards for trees and shrubs in Part IV. Section A discusses the general success standards for fish and wildlife habitat, recreation areas, forest products, and shelter belts. Section B contains the Phase II and Phase III productivity success standards for these land uses. Section C provides information on productivity sampling criteria. Section D contains stem density sampling techniques. Finally, Section E discusses previously mined areas that are reclaimed to fish and wildlife habitat, recreation, forest products, and shelter belts.

The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success must be selected by the regulatory authority and included in an approved program. The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that standards for success must include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of stocking. Tree and shrub stocking will be considered equal to the approved success standard when it is not less than 90 percent of the success standard. The sampling techniques for measuring success must use a 90 percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). The Federal regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3) contain the minimum success standards for tree and shrub stocking for areas to be developed for fish and wildlife habitat, recreation, forest products, and shelter belts. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) contain the minimum period of extended responsibility for successful revegetation. We conducted a technical review of Part IV and found that Kansas' guidelines for tree and shrub stocking are no less effective than the requirements of these Federal regulations.

Kansas' revised revegetation guidance document contains seven appendices that support the provisions in Parts I through IV.

By letter dated December 31, 2001 (Administrative Record No. KS-622.6), Triad Environmental Services (Triad) commented on several provisions in the amendment.

(1) Triad questioned why the minimum of 70 percent cover discussed in Part I, Section B, doesn't show up in Table 1 for “No Topsoil” areas.

Table 1 is just a summary of the vegetation requirements that are detailed in the guidance document. In the category of “No Topsoil” for each land use, Kansas summarizes the cover requirements as one year ground cover at 90 percent of the pre-mine cover and adequate to control erosion. Later in the document, Kansas provides the specific detailed guidance for measuring revegetation success by land use. In the detailed guidance Kansas specifies that a 70 percent ground cover is adequate to control erosion. There is no need to repeat all of the details provided in the land use specific guidance in the summary table.

(2) Triad commented that footnote (a) in Table 2 and footnote (b) in Table 3 should reference grain sorghum.

In response to Triad's comment, Kansas revised its terminology in Tables 2 and 3 to consistently refer to the row crop of grain sorghum.

(3) Triad questioned the meaning of the second paragraph in Part I that states “a subjective analysis of the ground cover will be required and must consider the premined quality of each land use.” Triad also stated that the proposed revegetation guidelines should be for postmine revegetation success determinations.

In response to the first comment, Kansas revised the language in the second paragraph of Part I to read, “A detailed analysis of the premine ground cover will be required and must consider the premine quality of each land use.”

Triad is incorrect in its assertion that the revegetation guidelines should be restricted to postmining revegetation. Measurement of postmining revegetation success is dependent upon a comparison to the premining vegetation as required at 30 CFR 816.116(a).

(4) Triad questioned why the premine ground cover was used in the second paragraph of Part I, Section A.

Kansas has chosen to use the premine reference area as one way of developing a standard of vegetative cover for comparison to the postmine cover. This is consistent with the Federal regulation requirements at 30 CFR 816.116(a)(2).

(5) Triad commented that Kansas should add the language “and shall be adequate to control erosion” in Part I, Section B.

In response to this comment, Kansas revised the second sentence in Part I, Section B, to read, “The ground cover success standards for previously mined areas will be the same as that of the premine ground cover, or at a minimum 70%, and shall be adequate to control erosion.”

(6) Triad questioned whether in Part I, Section C, the word “and” should be replaced by the word “or” in the phrase, “will be the greater of the premine ground cover value and the ground cover value needed to meet the approved postmining land use.” Triad also questioned whether the values in the Table 1 summary should be included in this section, i.e., “90% or greater of the 100% standard.”

In response to Triad's first comment, Kansas added the word “either” after the words “greater of” and replaced the word “and” with the word “or.” The revised sentence reads, “The ground cover success standards for fish and wildlife habitat, recreation, shelter belts and forest products land uses will be the greater of either the premine ground cover or the ground cover value need to meet the approved postmining land use.”

In response to Triad's second comment, we do not believe that the exact language in Table 1 needs to be included in Section C. Table 1 is just a summary of the general vegetation requirements that are detailed in the guidance document. However, Kansas does state the same standard in the first sentence of Section C in the phrase, “all areas must meet 90% of the success standard.” Unless otherwise stated, the success standard is always a “100% standard.”

(7) Triad commented that the requirements in Part I, Section E, Premine Ground Cover Sampling Criteria Techniques, should be “clarified to state that if a lower technical standard is proposed then this procedure will be used. There is no requirement under 816.116 or 779.19 to collect premine vegetation at a 90 percent statistical confidence interval.”

We disagree with the commenter. First, the Kansas regulations at K.A.R. 47-9-1(c) incorporate by reference 30 CFR Part 816. At 30 CFR 816.116(a)(1), all revegetation standards whether technical or reference area are required to be selected by the regulatory authority and included in an approved regulatory program. Any other standards not included in the approved guidelines would have to be approved through the same regulatory selection and approval process as the existing approved guidelines. As such, the language suggested by the commenter would not meet the requirements of 30 CFR 816.116(a)(1). Second, 30 CFR 816.116(a)(2) does require the use of a 90 percent statistical confidence interval when the undisturbed premine ground cover data is used as a standard for comparison with postmining revegetation success data.

(8) Triad commented that in Part I, Section F.7, “the premine sample dates should agree with the postmine sample dates (i.e. December 1).”

In response to Triad's comment, Kansas revised both the premine and postmine sample dates to read “April 1 to November 1.”

(9) Triad questioned why the species list for fish and wildlife habitat, recreation, shelter belts, and forest products, including pasture or grazing land used as wildlife habitat enhancement at Part I, Section I.9(a)(1), is different than the other land uses.

For these particular land uses, Kansas requires that a minimum of certain plant species be included in the ground cover on a land use specific basis. Kansas requires different species for different land uses because different land uses require the plant species that are compatible with that use.

(10) Triad commented that at Part II, Section F, Kansas needed to clarify the requirements for Phase II revegetation bond release.

In response to this comment, Kansas clarified the requirements for successful revegetation establishment at Phase II bond release by revising the first paragraph. Kansas added the language, “At Phase II” to the beginning of the last sentence of the paragraph as shown below:

(11) Triad questioned whether the stratification plan for forage crop production referred to in Part II, Section H, requires approval prior to initiation of sampling.

Kansas requires the operator to submit the plan for stratification before the initiation of sampling. However, Kansas does not require that the plan be approved before sampling. In the January 8, 2002, cover letter for its revised guidance document, Kansas clarified that approval of the plan does not take place until after initial sampling (Administrative Record No. KS-622.7).

(12) Triad commented that Kansas should include the language, “meet or exceed the optional reference area” in Part III, Section E.

In response to Triad's comment, Kansas added the suggested language to the last sentence of the first paragraph of Section E. The revised sentence reads as follows:

(13) Triad commented that Bermuda grass should be added to Appendix A as an acceptable species for pasture land use. Triad also submitted a December 18, 2001, letter from Mr. Gary Kilgore, Area Crops Specialist for Kansas State University Extension Service, who recommended that Bermuda grass be allowed.

In response to this comment, Kansas revised Appendix A to include Bermuda grass on the list of approved species for pasture land use.

(14) Finally, Triad commented, “TRIBE 13—ANDROPOGONEAE—Little Bluestem, Big Bluestem, and Indian Grass should be allowed for pasture land use.”

In response to this comment, Kansas revised Appendix A to include these species on the list of approved species for pasture land use.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kansas program (Administrative Record No. KS-622.1). The Natural Resources Conservation Service (NRCS) responded on December 10, 2001 (Administrative Record No. (KS-622.5), with two comments.

(1) The NRCS commented that in Part I, Section I.9, “the statement is made that a visual scan of each area will be made to determine compliance with diversity (number of species present). Instead of using a visual scan to determine species numbers, why not use the data developed from ground cover measurements to determine species numbers. This would provide more accurate information as well as reduce sampling time.”

In response to this comment, Kansas revised the text of Part I, Section I.9, to require that data developed from ground cover measurements in addition to a visual scan during the optimal growing season will be used to determine if each stratified sample area meets the criteria specified for the intended land use.

(2) The NRCS provided the following comments concerning Part II, Section B:

Kansas did not make any changes in response to this comment. Kansas investigated the current USDA-NRCS soil surveys and discovered that the crop production values included compensation for loss due to livestock trampling, insect damage, and herbivore consumption (harvest efficiency factors).

Under 30 CFR 732.17(h)(11)(ii), we are required to get a 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. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Kansas proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. KS-622.1). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On November 15, 2001, we requested comments on Kansas' amendment (Administrative Record No. KS-622.1), but neither responded to our request.

Based on the above findings, we approve the amendment Kansas sent us on October 9, 2001, and as revised on January 8, 2002.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 916, which codify decisions concerning the Kansas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this final rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. 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 under Executive Order 12866.

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

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

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

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

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

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

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

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

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “ * * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Louisiana program on October 10, 1980. You can find background information on the Louisiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the October 10, 1980, Federal Register (47 FR 23883). You can also find later actions concerning the Louisiana program and program amendments at 30 CFR 918.15 and 918.16.

By letter dated August 3, 2001 (Administrative Record No. LA-366.04), Louisiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Louisiana sent the amendment in response to an August 23, 2000, letter (Administrative Record No. LA-366) that we sent to Louisiana in accordance with 30 CFR 732.17(c). Louisiana proposed to amend the Louisiana Surface Mining Regulations (LSMR).

We announced receipt of the proposed amendment in the September 20, 2001, Federal Register (66 FR 48393). 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 October 22, 2001. We received comments from one Federal agency.

During our review of the amendment, we identified concerns about the definition of valid existing rights; areas where mining is prohibited or limited; exceptions for existing operations; procedures for permit application review; general requirements for development operations involving removal of more than 250 tons; valid existing rights determinations; criteria for permit approval or denial; and several cross-reference errors. We notified Louisiana of these concerns by letter dated November 16, 2001 (Administrative Record No. LA-366.08). By letter dated November 20, 2001 (Administrative Record No. LA-366.09), Louisiana sent us revisions to its proposed program amendment.

Based on Louisiana's revisions to its amendment, we reopened the public comment period in the December 26, 2001, Federal Register (66 FR 66377). The public comment period ended on January 10, 2002. We received comments from one Federal agency.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not discuss below concern nonsubstantive wording or editorial changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

Louisiana's regulations listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal regulations.

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

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

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Louisiana program (Administrative Record Nos. LA-366.05 and LA-366.10). The U.S. Fish and Wildlife Service (FWS) responded on September 12, 2001 (Administrative Record No. LA-366.06), that it reviewed the amendment and concludes that the proposed changes would not result in significant adverse impacts to fish and wildlife resources within its trusteeship. The FWS also responded on December 21, 2001 (Administrative Record No. LA-366.11), that it reviewed the revisions to the amendment and concludes that the activity is not pertinent to those Federal-trust resources under its charge.

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

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record Nos. LA-366.05 and LA-366.10). The EPA did not respond to our requests.

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 August 15, 2001, and December 10, 2001, we requested comments on Louisiana's amendment (Administrative Record Nos. LA-366.05 and LA-366.10), but neither responded to our requests.

Based on the above findings, we approve the amendment as submitted by Louisiana on August 3, 2001, and as revised on November 20, 2001.

We approve the regulations proposed by Louisiana with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 918, which codify decisions concerning the Louisiana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

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

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

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

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

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

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

The Postal Service is amending Sections P014, P022, and R000 of the DMM to reflect the enactment of the following two acts: the Semipostal Authorization Act, Public Law No. 106-253, 114 Stat. 634 (2000) and the 9/11 Heroes Stamp Act of 2001, Public Law No. 107-67, § 652, 115 Stat. 514 (2001). This notice also adopts DMM standards implementing the decision of the Governors of the United States Postal Service on the prices of the Breast Cancer Research semipostal stamp (BCRS) and the Heroes semipostal stamp.

The Semipostal Authorization Act authorizes the Postal Service to establish a 10-year program to sell semipostal stamps. The 10-year period begins on the date that the Postal Service begins to sell the selected semipostal stamps to the public.

Public Law No. 107-67 extends the sales period of the BCRS until the end of 2003 and directs the Postal Service to issue a semipostal stamp to provide assistance to families of the emergency relief personnel killed or permanently disabled in connection with the terrorist attacks of September 11, 2001. The Heroes semipostal stamp is to be issued as soon as practicable and may remain on sale through December 31, 2004. Funds raised in connection with this semipostal stamp are to be transferred to the Federal Emergency Management Agency.

Under 39 U.S.C. 414 and 416, the Governors are authorized to determine the price of the BCRS stamp and other semipostal stamps. On January 8, 2002, the Governors voted to change the price of the BCRS from 40 cents to 45 cents. The Governors also voted to set the price of the Heroes semipostal stamp at 45 cents. The new price of the BCRS is effective on March 23, 2002. The price of the Heroes semipostal stamp is effective on the date of the stamp's issuance, which is yet to be determined.

The refund provisions of Section P014 of the DMM are amended to apply to all existing and future semipostal stamps. In addition, the provisions of DMM P022 are amended to reflect the price change for the BCRS and the introduction of the Heroes semipostal stamp. Certain provisions of DMM P022 are revised to apply to all semipostal stamps. DMM R000 is amended to reflect the prices and postage values of the BCRS and the Heroes semipostal stamp.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding rulemaking by 39 U.S.C. 410(a), the Postal Service hereby amends the following standards of the DMM, incorporated by reference into the Code of Federal Regulations. See 39 CFR part 111.

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

On September 12, 2001 (66 FR 47419), 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.

On September 12, 2001 (66 FR 47392), we also published a direct final approval of the above rules because we believed that the rules were not controversial.

EPA's proposed action provided a 30-day public comment period. During this period, we did not receive comments on SCAQMD Rule 443.1. The direct final approval became effective and SCAQMD Rule 443.1 was incorporated into the SIP on November 13, 2001. During the comment period, we did receive comments regarding BAAQMD Rule 8-51. As a result, we removed our direct final action for BAAQMD Rule 8-51 on November 15, 2001 (66 FR 57387). We received comments from the following parties.

1. Mark Chytilo, Counsel for TRANSDEF, a Bay Area community group; letter dated October 12, 2001.

2. Julia May, Lead Scientist for Communities for a Better Environment (CBE); letter dated October 12, 2001.

The comments and our responses are summarized below.

Comment 1: Both parties comment that handheld aerosol adhesives, if exempted by the BAAQMD, will be exempt from emission controls because the Air Resources Board's (ARB) Consumer Products regulation (California Code of Regulations Title 17 Sections 94507-94528) has not been approved into the SIP. The provisions controlling these products are removed from the local regulation without adequate replacement provisions which violates CAA requirements regarding enforceability and backsliding. TRANSDEF also questioned BAAQMD's ability to regulate adhesives in general and requested clarification from EPA.

Response 1: On November 4, 1999 (64 FR 60109), EPA originally incorporated a version of BAAQMD Rule 8-51 into the SIP. That version, adopted by the BAAQMD on January 7, 1998 and submitted to us by the ARB on June 23, 1998, contained two similar provisions exempting aerosol adhesive products from the requirements of Rule 8-51. Section 8-51-113 generally exempted all adhesives subject to the ARB's Consumer Products regulation, while Section 8-51-111 specifically exempted aerosol adhesive products. The current version of BAAQMD Rule 8-51, adopted by the BAAQMD on May 2, 2001 and submitted to us by the ARB on May 31, 2001, deletes Section 8-51-111 because that provision expired on January 1, 2000. However, the aerosol adhesive product category is still exempt under the SIP-approved exemption in Section 8-51-113. Because the SIP-approved version of 8-51 never regulated the aerosol adhesive product category, the removal of Section 8-51-111 does not violate CAA section 193 requirements regarding backsliding. Furthermore, the submitted version of the rule which still includes Section 8-51-113, is very clear that aerosol adhesives are exempt. There is no ambiguity about how this provision is to be enforced and, therefore, no conflict with the enforceability requirement of CAA section 110(a).

On January 1, 1997, Section 41712 of the California Health and Safety Code was amended by Assembly Bill 1849, to apply the ARB's aerosol adhesive standard statewide. On or after January 1, 2000, Assembly Bill 1849 allows local districts, like the BAAQMD, to adopt and enforce stricter standards for aerosol adhesives. Section 39002 of the California Health and Safety Code, in fact, specifically provides that “local and regional authorities have the primary responsibility for control of air pollution from all sources other than vehicular sources” and that “local and regional authorities may establish stricter standards than those set by law or by the state board.” The local agency's ability to regulate the larger adhesives and sealants source category granted under Section 39002 was unaffected by Assembly Bill 1849. With the expiration of ARB's limited jurisdiction over the aerosol adhesive subcategory, the authority to regulate the entire adhesive and sealant source category, including aerosols, reverts back to the BAAQMD.

Comment 2: Because VOC is defined more narrowly in BAAQMD's Rule 8-51 than in the ARB's Consumer Products rule, the use of certain toxic compounds and/or environmentally harmful materials, including greenhouse gases, would not be allowed under Rule 8-51 but would be allowed under the ARB's Consumer Products rule. Both parties comment that EPA should not allow the use of these harmful compounds as replacements for ozone depletors and that EPA is, in fact, required by the Pollution Prevention Act to review regulations with source reduction in mind.

Response 2: This comment is only relevant if activities previously subject to Rule 8-51 are now subject to ARB's Consumer Products rule. As discussed in Response 1, this is not the case.

Comment 3: TRANSDEF noted that the BAAQMD has failed to complete the required RACT fix up which was due in 1992 because Rule 8-51 remains unapproved and urged EPA to impose sanctions pursuant to § 179.

Response 3: EPA proposed full approval of BAAQMD Rule 8-51 on September 12, 2001 partly because we believe it fulfills all RACT fix-up requirements. No comments were submitted that change that assessment. Therefore, there is no basis for imposing sanctions regarding this rule.

Comment 4: TRANSDEF requested that EPA convene a public hearing process to gain clarity about the rule citing confusion about Rule 8-51's overlap with ARB's Consumer Products regulation and compliance with RACT fix-up requirements.

Response 4: As discussed in Responses 1 and 3, overlap with ARB's Consumer Products regulation and RACT fix-up commitments are not substantive issues.

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP. This action permanently terminates all sanctions and FIP clocks associated with EPA's November 4, 1999 limited disapproval of a previous version of this rule.

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. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 29, 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).)

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

On August 21, 1998, the State of California submitted a revision to Rule 427 in the KCAPCD portion of the SIP, for which we finalized a limited approval and limited disapproval on July 21, 2000 (65 FR 45297). Our disapproval action started an 18-month clock beginning on August 21, 2000 for the imposition of one sanction (followed by a second sanction 6 months later) and a 24-month clock for promulgation of a Federal Implementation Plan (FIP). The State subsequently submitted revised Rule 427 on December 14, 2001. We have taken direct final action on this submittal pursuant to our modified direct final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules and Regulations section of today's Federal Register , we have issued a direct final full approval of the State of California's submittal of its SIP revision. In addition, in the Proposed Rules section of today's Federal Register , we have proposed full approval of the State's submittal. Based on the direct final full approval set forth in today's Federal Register , we believe that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, we are taking this final rulemaking action, effective on publication, finding that the State has corrected the deficiencies. However, we are also providing the public with an opportunity to comment on this final action. If, based on any comments on this action and any comments on our proposed full approval of the State's submittal, we determine that the State's submittal is not fully approvable and this final action was inappropriate, we will either propose or take final action finding that the State has not corrected the original disapproval deficiencies. As appropriate, we will also issue an interim final determination or a final determination that the deficiency has been corrected.

This action does not stop the sanctions clock that started for this area on August 21, 2000. However, this action will stay the imposition of the offsets sanction and will defer the imposition of the highway sanction. If our direct final action fully approving the State's submittal becomes effective, such action will permanently stop the sanctions clock and will permanently lift any imposed, stayed or deferred sanctions. If we must withdraw the direct final action based on adverse comments and we subsequently determine that the State, in fact, did not correct the disapproval deficiencies, we will also determine that the State did not correct the deficiencies and the sanctions consequences described in the sanctions rule will apply. See 59 FR 39832 (August 4, 1994), codified at 40 CFR 52.31.

We are taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset sanction will be stayed and imposition of the highway sanction will be deferred until our direct final action fully approving the State's submittal becomes effective or until we take action proposing or finally disapproving in whole or part the State submittal. If our direct final action fully approving the State submittal becomes effective, at that time any sanctions clocks will be permanently stopped and any imposed, stayed, or deferred sanctions will be permanently lifted.

Because we have preliminarily determined that the State has an approvable submittal, relief from sanctions should be provided as quickly as possible. Therefore, we are invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely stays and defers federal sanctions. 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 only stays an imposed sanction and defers the imposition of another, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely stays a sanction and defers another one, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not contain technical standards, thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of February 26, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

Table 1 lists the rule we are approving with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On January 22, 2002, this submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved into the SIP on July 21, 2000 (65 FR 45297) a version of Rule 427, adopted on July 2, 1998. We received but did not act on submittals of Rule 427, adopted on July 1, 1999 and May 4, 2000. While we can act on only the most recent submittal, we considered the information previously submitted.

The purpose of the submitted revised Rule 427 is to remedy the deficiencies cited in the limited approval and limited disapproval action on Rule 427 on July 21, 2000 (65 FR 45297).

Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for major sources of NO X in ozone nonattainment areas (see sections 182(a)(2)(A) and 182(f) and must not relax existing requirements (see sections 110(l) and 193). The KCAPCD regulates a serious ozone nonattainment area. See 66 FR 56476 (November 8, 2001). Such areas must fulfill RACT for all major sources of NO X pursuant to sections 107(d) and 182(f) of the CAA.

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

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR Part 51.

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

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

• Cost-Effective Nitrogen Oxides (NO X ) Reasonably Available Control Technology (RACT) , U.S. EPA Office of Air Quality Planning and Standards (March 16, 1994).

• State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown, U.S. EPA, Office of Air Quality Planning and Standards (September 20, 1999).

We believe the rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. All of the deficiencies identified in our previous limited approval and limited disapproval action on Rule 427 have been adequately addressed as follows:

• Section VIII.C.1.a: [The frequency of source testing to demonstrate compliance should be reduced from every two years to once every 8,760 hours or two years, whichever time period is shorter.] The District has revised section VIII.C.1 to correct the deficiency.

• Sections VIII.C.2.c and VIII.C.2.d: [The alternative of group-testing a representative sample of 1/3 of the engines each year to show compliance should be done with a 10% lower emissions limit than for each individual engine. The engines tested should be rotated in such a way that all engines are tested once every three years.] The District has revised section VIII.C.2 to correct the deficiency. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by March 28, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 29, 2002. This will incorporate this rule into the federally-enforceable SIP.

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

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 CAA. 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 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. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This supplemental information section is organized as follows:

In this action, EPA is approving into the Minnesota SO 2 SIP certain portions of the Title V permit for NSP's Riverside plant, located in Minneapolis, Hennepin County, Minnesota. Specifically, EPA is only approving into the SIP those portions of the permit cited as “Title I condition: State Implementation Plan for SO 2 .” In this same action, EPA is removing the NSP Riverside Plant Administrative Order from the state SO 2 SIP.

EPA is taking this action because the state's request does not change any of the emission limitations currently in the SIP or their accompanying supportive documents, such as the SO 2 air dispersion modeling. The revision to the SIP does not approve any new construction or allow an increase in emissions, thereby providing for attainment and maintenance of the SO 2 National Ambient Air Quality Standards (NAAQS) and satisfying the applicable SO 2 requirements of the Act. The only change to the SO 2 SIP is the enforceable document for the NSP Riverside Plant, from the Administrative Order to the federal Title V permit.

NSP's Riverside Plant is located in Minneapolis, Hennepin County, Minnesota. Monitored violations of the primary SO 2 NAAQS from 1975 through 1977 led MPCA to recommend that EPA designate Air Quality Control Region (AQCR) 131 as nonattainment for SO 2 . AQCR 131 includes Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, and Washington Counties in the State of Minnesota. EPA designated AQCR 131 as a primary SO 2 nonattainment area on March 3, 1978 (43 FR 8962). In response to Part D requirements of the Clean Air Act, MPCA submitted a final SO 2 plan on August 4, 1980. EPA approved the Minnesota Part D SO 2 SIP for AQCR 131 on April 8, 1981 (46 FR 20996).

Subsequent monitored violations of the SO 2 NAAQS prompted a 1982 notice of SIP inadequacy for the Dakota County area of AQCR 131. Also, as a result of the promulgation of the Good Engineering stack height rule in 1985, the MPCA identified modeled attainment problems in other areas of AQCR 131. The submittal of a revised plan for the area was further delayed by the passage of the CAA Amendments in 1990. MPCA submitted the final SO 2 SIP revisions to EPA in three parts. On May 29, 1992 MPCA submitted the plan for the majority of the AQCR 131 area, which included Hennepin County. EPA first approved the Administrative Order for the NSP Riverside Plant into the Minnesota SO 2 SIP on April 14, 1994 (59 FR 17703) and amended the order in the SIP on October 13, 1998 (63 FR 54585).

The SIP revision submitted by MPCA on September 1, 1999, consists of a Title V operating permit issued to the NSP Riverside Plant. The state has requested that EPA approve the following:

(1) The inclusion into the Minnesota SO 2 SIP only the portions of the NSP Riverside Plant Title V permit cited as “Title I condition: State Implementation Plan for SO 2 ”; and,

(2) The removal from the Minnesota SO 2 SIP of the Administrative Order for the NSP Riverside Plant previously approved into the SIP.

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not federally enforceable because the permits expire. The state then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's Title V permitting rule, approved into the state SIP on May 2, 1995 (60 FR 21447), includes the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *.” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has since resumed using permits as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the permits submitted by MPCA are cited as “Title I condition: State Implementation Plan for SO 2 ,” therefore assuring that the SIP requirements will remain permanent and enforceable. In addition, EPA reviewed the state's procedure for using permits to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Act (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). The MPCA has committed to using this procedure if the Title I SIP conditions in the permit issued to the NSP Riverside Plant and included in the SIP submittal need to be revised in the future.

EPA is approving the site-specific SIP revision for the NSP Riverside Plant, located in Minneapolis, Hennepin County, Minnesota. Specifically, EPA is approving into the SIP only those portions of NSP Riverside's Title V permit cited as “Title I condition: State Implementation Plan for SO 2 .” In this same action, EPA is also removing from the state SO 2 SIP the NSP Riverside Plant Administrative Order which had previously been approved into the SIP on April 14, 1994.

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective April 29, 2002, without further notice unless we receive relevant adverse comments by March 28, 2002. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective April 29, 2002.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

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 29, 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).)

EPA believes that it is appropriate to make certain amendments in today's final rule effective immediately upon today's publication in the Federal Register . This rule will not impose an additional burden on regulated parties. By making these changes effective immediately, refiners and terminals will be able to maximize the opportunity to incorporate these changes within their operating procedures, which should promote the availability of summer RFG during this spring's transition period. These affected parties have stated that they needed changes to be effective no later than early February to allow sufficient lead time to affect this year's winter to summer transition. EPA notes that the general requirement in 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), concerning publication or service of a substantive rule not less than 30 days prior to its effective date, does not apply here. CAA section 307(d)(1) provides that section 553 of the APA does not apply to promulgation or revision of any regulation pertaining to fuels or fuel additives under section 211 of the CAA. Even if section 553(d) of the APA were to apply, there is good cause under section 553(d)(3) to provide less than 30 days notice, for the reasons noted above.

The contents of today's preamble are listed in the following outline.

Entities potentially affected by this action include those involved with the production, importation, distribution, sale and storage of gasoline motor fuel.

The table below gives some examples of entities that may have to comply with the regulations. However, since these are only examples, you should carefully examine these and other existing regulations in 40 CFR part 80. If you have any questions, please call the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The current blendstock tracking and accounting requirements in § 80.102 were included in the RFG/anti-dumping regulations out of a concern that refineries with 1990 baselines cleaner than the anti-dumping statutory baseline might transfer dirty gasoline blendstocks to refineries with dirtier baselines because such refineries would be better able to use the dirty blendstocks while still meeting their anti-dumping baseline. Under the current regulations, if a cleaner refinery transfers large quantities of certain dirty blendstocks to another refinery, the cleaner refinery must account for all of the blendstocks it produces and transfers in its anti-dumping compliance calculations in specified subsequent annual averaging periods. Thus, the cleaner refinery would not be able to evade its more stringent baseline by transferring blendstocks.

In the Notice of Proposed Rulemaking (NPRM) (66 FR 6163, December 3, 2001), we determined, based on a recent analysis of the current blendstock tracking and accounting requirements in § 80.102  1 , that, under most circumstances, refineries today would have little or no incentive to transfer blendstocks to other refineries for the purpose of evading a more stringent baseline. 2 We also concluded that the current blendstock tracking and accounting requirements create significant additional compliance and reporting burdens, and, in some cases, may have the effect of deterring refiners or importers from transferring gasoline blendstocks that they otherwise would transfer in the normal course of business in response to legitimate supply concerns and other refinery needs. Therefore, we concluded that the existing blendstock tracking and accounting requirements were unnecessary and that eliminating those requirements may help to improve the responsiveness of the gasoline supply system by increasing refiners' flexibility to transfer gasoline blendstocks. As a result, we proposed to eliminate the current blendstock tracking and accounting requirements in § 80.102.

We continued to have concern that a refinery with a baseline more stringent than the anti-dumping statutory baseline could create an off-site terminal blending facility acting as a refinery for the sole purpose of certifying gasoline at the less stringent anti-dumping statutory baseline. To address this limited situation in which blendstock transfers could possibly be undertaken for the purpose of evading a more stringent baseline, we proposed to replace the existing provisions with a significantly less restrictive program for regulating blendstock transfers. Our proposed program would have required a refinery with a baseline that is more stringent than the anti-dumping statutory baseline, and that produces less gasoline than its 1990 baseline volume during the annual averaging period, 3 to petition EPA for approval to transfer specified dirty blendstocks in excess of five percent of the refinery's annual production. Under the proposal, the refinery would be required to demonstrate that such blendstock transfers were for a legitimate operational purpose.

We received several comments on the details of the proposed petition requirements. We also received a number of comments recommending that EPA totally eliminate any requirements relating to blendstock transfers. These commenters believe that restrictions on blendstock transfers are unnecessary, particularly in light of the new toxics requirements under the Mobile Source Air Toxics (MSAT)  4 rule and the new controls on sulfur under the Tier 2 Gasoline Sulfur (Tier 2)  5 rule. These commenters believe these rules will have the effect of imposing more stringent toxics and NO X performance requirements on conventional gasoline (CG) than currently required under the anti-dumping program.

We have reconsidered our proposal in light of the comments we received. We agree that the MSAT and Tier 2 rules, in most situations, will result in more stringent toxics and NO X performance for conventional gasoline than the current anti-dumping requirements. We believe that these rules, in combination with the fact that almost all refiners now produce greater volumes of gasoline than they did in 1990, will virtually eliminate any potential for refiners to engage in blendstock transfers that would degrade the quality of conventional gasoline. The recently promulgated MSAT rule for example, which is effective beginning in 2002, requires each refinery to meet a performance standard for toxic air emissions for CG and RFG equivalent to the actual performance of that refinery's CG or RFG during the baseline years 1998, 1999, and 2000. This rule also establishes a default toxics baseline, based on the national average for toxics emissions performance during the baseline years for refineries that are unable to establish an individual toxics baseline. Because the new MSAT default baseline is more stringent than the anti-dumping statutory exhaust toxics baseline, only a refinery with a toxics baseline that is more stringent than the MSAT default baseline would have any incentive to transfer dirty blendstocks to a newly created terminal/refinery facility (which would be subject to the MSAT default baseline) for the purpose of evading its more stringent toxics baseline.

We believe that the more stringent sulfur standards under the Tier 2 rule will have a similar effect with regard to the potential for refiners and importers to use blendstock transfers as a means of evading a more stringent NO X anti-dumping baseline. Since all refiners and importers (with certain exceptions in the early years of the Tier 2 program) will be subject to an annual average sulfur standard of 30 ppm, and because removal of sulfur tends to reduce NO X emissions from gasoline, generally under Tier 2 refiners are likely to produce gasoline that has better NO X performance. Thus, we believe the low sulfur requirements also will tend to reduce the incentive to transfer dirty blendstocks to another refinery, including a new terminal/refinery facility, for the purpose of evading a more stringent NO X baseline. In any event, we believe that the cost of creating a new terminal/refinery facility as described above for the purpose of evading a more stringent baseline would likely outweigh any possible economic benefit.

In light of these observations, we believe that the blendstock tracking and accounting provisions now have no significant independent utility in the context of the RFG/anti-dumping program. Because these provisions present a potentially significant burden for refiners, and may result unnecessarily in added rigidity in the gasoline production and distribution system, we have decided to eliminate these blendstock tracking and accounting provisions altogether.

Accordingly, today's final rule deletes the current blendstock tracking and accounting requirements in § 80.102, and does not replace them with any other restrictions on blendstock transfers. However, we intend to closely monitor situations in which new terminal/refinery facilities are created to determine if such facilities are being created for the purpose of evading a more stringent baseline. If we find that such facilities are being created for this purpose, we may reinstate the blendstock accounting requirements or impose other appropriate restrictions on blendstock transfers in the future.

Refiners, importers and oxygenate blenders producing gasoline are required to test RFG and CG for various fuel parameters like olefins, distillation points, benzene and RVP. During the federal RFG rulemaking, and in response to comments by the regulated industry, EPA designated analytical test methods that the Agency would use for enforcement and compliance purposes. See 40 CFR 80.46 (59 FR 7813 (February 16, 1994)). On December 3, 2001, the Agency proposed to update certain designated analytical test methods for measuring olefins, RVP, Distillation, and oxygen and oxygenate content analysis in reformulated and conventional gasoline.

The American Petroleum Institute (API), the National Petroleum Refiners Association (NPRA), and several refiners commented in support of updating certain analytical test methods in the proposal with caveats. One commenter also requested that an adequate transition time be provided for industry to become familiar with the ASTM test methods before they are required to implement them. Therefore, the Agency today is making the test method changes effective sixty (60) days after publication of the final rule in the Federal Register . We are confident that sixty (60) days is sufficient lead time for industry to become familiar and implement these ASTM test methods. Table 3 lists the designated analytical test methods which are being updated for each gasoline parameter measured under RFG and CG fuels program in today's final rule. We have reviewed these newer versions of the ASTM test methods. We believe that the revisions in the newer versions of the ASTM designated test methods are not significant changes that would cause a user of an older version of the same method to incur significant costs. All of the revisions were deemed necessary by ASTM so that improvements in the test method's procedures would ensure better operation for the user of the test method.

A detailed discussion of all the comments received on the testing methods, alternatives to those we are promulgating today, and our reasons for selection of the test methods in Table 3 are contained in the Response to Comments document for this rulemaking (see item V-C-1 in Docket A-2001-21).

40 CFR Part 80, Appendices D and G, specify sampling procedures for gasoline and diesel fuel for all motor vehicle fuel programs under 40 CFR Part 80, including the programs for unleaded gasoline, gasoline volatility, diesel sulfur, RFG, and anti-dumping. We proposed to replace the sampling procedures in Appendices D and G with the following ASTM standard practices:

• D 4057-95(2000), “Standard Practice for Manual Sampling of Petroleum and Petroleum Products;”

• D 4177-95(2000), “Standard Practice for Automatic Sampling of Petroleum and Petroleum Products;”

• D 5842-95(2000), “Standard Practice for Sampling and Handling of Fuels for Volatility Measurements;” and

• D 5854-96(2000), “Standard Practice for Mixing and Handling of Liquid Samples of Petroleum and Petroleum Products.”

These changes were formerly proposed in “Regulation of Fuels and Fuel Additives: Modifications to Standards and Requirements for Reformulated and Conventional Gasoline—Proposed Rule,” 62 FR 37338 (July 11, 1997), although these provisions were never finalized. Since we are updating various other test methods via this notice, it is logical to consider sampling methodologies here as well.

Appendices D and G of 40 CFR Part 80 were adopted from the 1981 version of D 4057. Over time, however, ASTM has updated D 4057, and these changes are not reflected in Appendices D and G.

EPA received several supportive comments for adopting the ASTM sampling methods as proposed. One commenter also requested that an adequate transition time be provided for industry to become familiar with the ASTM sampling methods before they are required to implement them. Therefore, the Agency today is making the sampling method changes effective sixty (60) days after publication of the final rule in the Federal Register . We are confident that sixty (60) days is sufficient lead time for industry to become familiar and implement these ASTM sampling methods.

Thus, EPA is today adopting three ASTM methods in addition to D 4057-95(2000) as proposed in order to include procedures that address a broad scope of sampling situations that are relevant to EPA's motor vehicle fuels programs. D 4177-95(2000) deals with automatic sampling of petroleum products, which is relevant under the anti-dumping regulations for refiners who produce conventional gasoline using an in-line blending operation where automatic sampling is necessary. Similarly, D 5842-95(2000) deals with sampling and sample handling for volatility measurement, which is relevant to determining compliance with the volatility standards in § 80.27 and the RFG standards in § 80.41. Last, D 5854-96(2000) deals with the creation of composite samples, which is relevant under the RFG and anti-dumping programs in certain situations involving imported gasoline where the gasoline from multiple ship compartments is treated as a single batch.

We believe it is appropriate to replace Appendices D and G with ASTM standard practices. The current ASTM practices reflect up-to-date procedures, which if followed would result in improved sample quality for regulatory purposes. In addition, today's adoption of industry standard procedures reduces the regulatory burden because parties would be able to follow their customary practices when meeting regulatory requirements.

Two other actions by EPA, in combination with today's final actions, are also expected to help to facilitate the annual spring transition from winter grade RFG to summer grade RFG by increasing RFG inventories during this transition period. These are not final regulatory actions being taken in today's final rule, but are separate and independent Agency actions that are related to today's final actions in intent and effect.

RFG at facilities upstream of retail outlets must meet the standards for VOC emissions performance from May 1 through September 15 each year, and additionally at retail outlets from June 1 through September 15 each year. These standards are a minimum 25% reduction in VOC emissions in southern RFG areas and a minimum 23.4% reduction in northern RFG areas. EPA has allowed a 2% tolerance when evaluating compliance with these standards at locations downstream of refineries since, due to testing variability, a refiner's test results could show compliance for some particular RFG, yet a downstream party's test results could show noncompliance for that same RFG. This 2% tolerance has applied at terminals only after a terminal has obtained a test result showing compliance with the VOC standard without application of the tolerance.

Since it is not a regulatory provision, no mention was made in the NPRM of allowing use of the 2% testing tolerance for the VOC performance standard for the first tank of RFG at terminals classified as VOC controlled. Nonetheless, several commenters mentioned that such an extension of the existing enforcement tolerance would provide more help in easing the seasonal transition from winter to summer RFG than any of the actions that EPA proposed (including the terminal receipt date). Moreover, commenters pointed out that the 2% tolerance is already applied to subsequent tanks of summer RFG at terminals after the first tank of summer RFG, and its extension would have no adverse impact on the overall emission characteristics of summer grade RFG. EPA agrees, in general, with the commenters, and is planning to issue guidance to extend applicability of the 2% enforcement tolerance to cover the first tank of RFG classified as VOC controlled at terminals.

This extension of EPA's enforcement tolerance will help to increase flexibility for terminals during the crucial period of seasonal transitions for the first tank of RFG at terminals classified as VOC controlled, the tank for which terminals typically have the most difficulty meeting the VOC standard. This extension should help provide some relief in meeting the VOC standard for tanks which may contain a small amount of residual non-VOC controlled RFG (the tank “heel”) prior to refilling the tank with VOC-controlled RFG, tanks which may have slightly missed meeting the VOC performance standards without the 2% tolerance.

In December of 2001, EPA finalized a rule to permit reclassification of previously certified gasoline (PCG) (66 FR 67098, December 28, 2001). This rule allows extremely “clean” conventional gasoline (CG) to be reclassified as RFG, winter RFG to be reclassified as summer RFG, and VOC Region 2 RFG to be reclassified as Region 1 RFG in a manner that eliminates the potential for degrading the emissions performance of the various gasoline pools. The PCG rule will provide refiners with greater flexibility to potentially increase summer RFG production during the transition by allowing reclassification of winter RFG to summer RFG.

In EPA's December 3, 2001, notice of proposed rulemaking, EPA proposed a new April 15 date on or after which no persons except retailers and wholesale purchaser consumers would be able to accept receipt of any RFG or RBOB other than summer grade RFG or RBOB. We also solicited comment on (1) the elimination or delay of the May 1 up-stream compliance date, (2) establishment of April 1 as the terminal receipt date (rather than April 15), (3) establishment of a two step turnover process for terminals, and (4) establishing an April 15 terminal receipt date but limiting it to the Chicago/Milwaukee RFG areas.

EPA received numerous comments on this part of the proposal. Commenters generally believed that any such changes would be unlikely to have beneficial effects on gasoline supply during the seasonal transition period, and many commenters expressed concern that changes in the regulatory scheme too close to the beginning of the summer ozone season could actually complicate the transition. EPA recognizes that there are many complicated factors, in addition to EPA's compliance deadlines, that have an impact on gasoline supply during the seasonal transition period, including some EPA was unaware of when this rule was proposed. EPA wants to more fully understand these factors before making any final decisions about whether to adopt a different compliance deadline (or deadlines) for terminals or others. Therefore, EPA is not taking any final action today on the proposed April 15 terminal receipt date. A detailed discussion of EPA's decision is included in the response to comments (item V-C-1 in Docket A-2001-21).

In the notice of proposed rulemaking, EPA asked for comment on reducing the minimum allowable RVP for summer RFG from 6.4 to 6.0 psi, as an additional means of helping ease the winter to summer RFG transition. EPA has decided not to take any final action on this item at this time. A more detailed discussion of EPA's decision is included in the response to comments (item V-C-1 in Docket A-2001-21).

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, we have determined that this final rule is not a significant regulatory action.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The final rule eliminates the existing blendstock accounting requirements at 40 CFR 80.102 and updates ASTM test methods to their most recent version. Thus, Executive Order 13132 does not apply to this final rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this final rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), 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 final rule does not have tribal implications. It 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. This rule applies to gasoline refiners, blenders and importers that supply gasoline to RFG areas. Today's action modifies the Federal RFG requirements, and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that has not more than 1,500 employees (13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, we believe that this action will not have a significant economic impact on a substantial number of small entities. We have determined that no small entities will experience an impact from this proposal.

Although this final rule will not have a significant impact on a substantial number of small entities, EPA has nonetheless tried to reduce the impact of this rule on small entities. We continue to be interested in the potential impacts of the final rule on small entities and welcome comments on issues related to such impacts.

The information collection requirements in this final rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (OMB # 2060-0277, EPA ICR No. 1591.15) and a copy may be obtained from Susan Auby by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at auby.susan@epamail.epa.gov, or by calling (202) 260-4901. A copy may also be downloaded off the Internet at http://www.epa.gov/icr.

Today's action eliminates the current blendstock tracking and accounting provisions of the RFG/anti-dumping regulations. The information collection hour burden associated with the current blendstock tracking and accounting provisions is estimated to be 24 hours per respondent to track blendstock transfers and prepare each blendstock accounting report, and 80 hours per respondent to prepare a request for a waiver of the blendstock accounting requirements (under extreme or unusual circumstances). The respondent cost associated with the current blendstock tracking and accounting requirements is estimated to be $60 per hour for blendstock tracking and preparation of each blendstock accounting report and blendstock accounting waiver request. The total information collection hour burden associated with the current blendstock tracking and accounting provisions is estimated to be 4,880 hours per year. This is based on an estimate of 200 respondents at 24 hours for blendstock tracking and preparation of blendstock accounting reports, and one respondent at 80 hours for preparation of blendstock accounting waiver requests. This hour burden is eliminated by today's action. The total cost burden associated with the current blendstock tracking and accounting provisions is estimated to be $292,800 per year (4,880 hours × $60 per hour). This cost burden is eliminated by today's action.

Regarding recordkeeping and reporting burdens, in a letter dated December 12, 2000, the National Petrochemical & Refiners Association (NPRA) commented on EPA's draft Information Collection Request for reformulated and conventional gasoline reporting. 65 FR 60939 (October 13, 2000). In the letter, NPRA made several requests relating to the RFG program's current information collection burden. Although today's action does not address all of NPRA's requests, as discussed above, today's action eliminates all of the current burden associated with the RFG program's anti-dumping blendstock tracking and accounting requirements. The current blendstock provisions impose substantial recordkeeping and reporting burdens on refiners who transfer blendstocks. These recordkeeping and reporting burdens may have had the effect of deterring refiners from transferring such blendstocks. Today's action eliminates these burdens for all refiners. We believe this reduction in information collection burden will result in a more free exchange of blendstocks.

OMB has approved the information collection requirements contained in the final RFG/anti-dumping rulemaking (See 59 FR 7716 (February 16, 1994) and has assigned OMB control number 2060-0277 (EPA ICR No. 1591.13). EPA ICR 1591.14 associated with this rule will be encompassed in the next renewal of ICR 1591.13.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. The final rule would impose no enforceable duty on any State, local or tribal governments or the private sector. This final rule applies to gasoline refiners, blenders and importers that supply gasoline to RFG areas.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This final rulemaking involves environmental monitoring or measurement. Consistent with the Agency's Performance Based Measurement System (“PBMS”), EPA proposes not to require the use of specific, prescribed analytic methods. Rather, the Agency plans to allow the use of any method that meets the prescribed performance criteria. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified.

This final rule will update certain designated analytical test methods to their most recent ASTM version for the RFG program. Today's action does not establish new technical standards or analytical test methods, although it does update certain ASTM test methods and sampling methods to their current versions. To the extent that this action would allow the use of standards developed by voluntary consensus bodies (such as ASTM) this action would further the objectives of the NTTAA. The Agency plans to address the objectives of the NTTAA more broadly in an upcoming rulemaking to establish performance-based criteria for qualification of alternative analytical test methods.

This rule is not an economically “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it does not have a significant adverse effect on the supply, distribution, or use of energy. EPA is allowing additional flexibility for refiners to transfer blendstocks, which should allow refiners to better respond to fluctuations in gasoline supply or demand.

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

Statutory authority for today's final rule comes from sections 211(c) and 211(k) of the CAA (42.U.S.C. 7545(c) and (k)). Section 211(c) allows EPA to regulate fuels that contribute to air pollution which endangers public health or welfare, or which impairs emission control equipment. Section 211(k) prescribes requirements for RFG and conventional gasoline and requires EPA to promulgate regulations establishing these requirements. Additional support for the procedural aspects of the fuels controls in today's rule comes from sections 114(a) and 301(a) of the CAA.

For the reasons set forth in the preamble, part 80 of title 40, chapter I of the Code of Federal Regulations is amended as follows: