This action establishes a Class D airspace at Indian Springs Air Force Auxiliary Field, NV. Class D airspace designations are published in Paragraph 5000 of FAA Order 7400.9J dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace established in this document will be published subsequently in that Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received.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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 02-AWP-2.” The postcard will be date stamped and returned to the commenter.

The regulations adopted therein 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. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

First Priority, Inc., 1585 Todd Farm Dr., Elgin, IL 60123, filed ANADA 200-301 for PRIVASAN (chlorhexidine acetate) Antiseptic Ointment. The application provides for topical use of a 1-percent chlorhexidine acetate ointment for surface wounds on dogs, cats, and horses. First Priority's PRIVASAN Antiseptic Ointment is approved as a generic copy of Ft. Dodge Animal Health's NOLVASAN Antiseptic Ointment, approved under NADA 9-872. ANADA 200-301 is approved as of November 6, 2001, and 21 CFR 524.402 is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

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

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

1. The authority citation for 21 CFR part 524 continues to read as follows:

(a) Specifications . The product contains 1-percent chlorhexidine acetate in an ointment base.

(b) Sponsor . See Nos. 000856 and 058829 in § 510.600(c) of this chapter.

(c) Conditions of use —(1) Indications for use . Use as a topical antiseptic ointment for surface wounds on dogs, cats, and horses.

(2) Limitations . Not for use in horses intended for food.

IACAC has amended its Rules of Procedure applicable to the conduct of international commercial arbitration under the Convention. The amended Rules of Procedure will enter into force on April 1, 2002, for all states party to the Convention. The Convention entered into force for the United States in 1990 with the reservation that the United States is only bound by the Rules of Procedure in effect on July 1, 1988, unless the Secretary of State determines by regulation that any subsequent modification or amendment will apply in the United States. Pursuant to section 306 of the Federal Arbitration Act, 9 U.S.C. Sec. 306, the rulemaking procedures of Title 5 section 553 of the United States Code apply to any determination to effectuate such a modification or amendment within the United States.

On February 19, 1999, the Department received a copy of the amended IACAC Rules of Procedure from the U.S. National Section of IACAC, the American Arbitration Association in New York. After clarifying some typographical and translation errors with IACAC, the Department published a notice of proposed rulemaking in the Federal Register on October 4, 1999 (64 FR 53632, Oct. 4, 1999), and requested public comments by November 18, 1999, on the text of the amendments. A small number of requests were received for copies of the amended Rules of Procedure and comments received. The comments were reviewed, discussed with the individuals submitting them, and provided to the American Arbitration Association with a request that IACAC consider making modifications to its amendments.

On May 31, 2000, the Department was notified by the American Arbitration Association that IACAC had made minor changes to the amendments primarily related to ensuring the text is consistent with the Rules of Arbitration published by the United Nations Commission on International Trade Law (“UNCITRAL”), and that the English and Spanish language versions are in conformity. The revised amendments were formally adopted by IACAC on July 1, 2000. The amendments will uniformly enter into force for all states party to the Convention on April 1, 2002, and are incorporated in the text of the final rule published today.

In addition to the Rules of Procedure published here governing the conduct of arbitration under the Convention, IACAC has amended its internal procedures for cases administered under its Rules. These internal procedures, which largely cover fees and internal practices related to the appointment of arbitrators, will not be published in the Code of Federal Regulations. Interested persons should contact the American Arbitration Association, the U.S. National Section of IACAC, at 335 Madison Ave. New York, NY 10017, with any queries about these internal procedures. The text of the internal procedures follows:

The Department is publishing this rule as a final rule after it was published as a proposed rule on October 4, 1999 (see Supplementary Information).

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, in accordance with the letter to the Department of State of February 4, 1994 from the Director of the Office of Management and Budget, it does not require review by the Office of Management and Budget.

This regulation 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

Public Law 103-236, the United States International Broadcasting Act of 1994, created the Broadcasting Board of Governors (BBG) within the United States Information Agency (USIA). By law, the bipartisan Board consisted of nine members—eight members who were appointed by the President, by and with the advice and consent of the Senate, and the USIA Director.

On October 21, 1998, President Clinton signed Public Law 105-277, the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999. Contained as Division G of this legislation was the Foreign Affairs Reform and Restructuring Act of 1998, which reorganized the foreign affairs agencies of the U.S. Government. Under this reorganization, the Broadcasting Board of Governors became an independent Federal entity on October 1, 1999. Under the reorganization of the foreign affairs agencies, the responsibilities of the Board remained intact, and the membership of the Board remained the same, except that the USIA Director was replaced by the Secretary of State.

The BBG has responsibility for oversight of all United States sponsored, non-military broadcasting to foreign countries. The BBG oversees the operations of the International Broadcasting Bureau (IBB), which includes the worldwide broadcasting services of the Voice of America (VOA) and WORLDNET, the Office of Cuba Broadcasting (OCB), Engineering and Technical Operations, and of the two grantee organizations, Radio Free Europe/Radio Liberty (RFE/RL) and Radio Free Asia (RFA). The Board members also serve as members of the Board of Directors for both RFE/RL and RFA.

The Board's authorities include:

• To review and evaluate the mission and operation of, and assess the quality, effectiveness, and professional integrity of, all such activities within the broad foreign policy objectives of the United States;

• To make and supervise grants for broadcasting and related activities for RFE/RL and RFA;

• To review, evaluate, and determine, at least annually, the addition or deletion of language services; and

• To allocate funds appropriated for international broadcasting activities among the various elements of the IBB and grantees, subject to reprogramming notification.

In total, the BBG broadcasting entities transmit over 2,000 hours of weekly programming in 61 languages to over 100 million weekly listeners worldwide.

This regulation revises 22 CFR part 503, which contains the Freedom of Information Act regulations of the former United States Information Agency and establishes regulations of the BBG for implementing the Freedom of Information Act.

In accordance with 5 U.S.C. 605(b), the BBG certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered being a significant regulatory action within the meaning of section 3(f) of Executive Order 12866, nor does this rule have Federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612.

Public Law 103-236, the United States Broadcasting Act of 1994, created the BBG within the United States Information Agency (USIA). By law, the bipartisan board consisted of nine members-eight members who were appointed by the President, by and with the advice and consent of the Senate, and the USIA Director.

On October 21, 1998, President Clinton signed Pub. L. 105-277; the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999. Contained as Division G of this legislation was the Foreign Affairs Reform and Restructuring Act of 1998, which reorganized the foreign affairs agencies of the U.S. Government. Under this reorganization, the Broadcasting Board of Governors became an independent Federal entity on October 1, 1999. Under the reorganization of the foreign affairs agencies, the responsibilities of the Board remained intact, and the membership of the Board remained the same, except that the USIA Director was replaced by the Secretary of State.

The BBG has responsibility for oversight of all United States sponsored, non-military broadcasting to foreign countries. The BBG oversees the operations of the International Broadcasting Bureau (IBB), which includes the worldwide broadcasting services of the Voice of America (VOA), WORLDNET, the Office of Cuba Broadcasting (OCB), Engineering and Technical Operations, and of the two grantee organizations, Radio Free Europe/Radio Liberty (RFEIRL) and Radio Free Asia (RFA). The Board members also serve as members of the Board of Directors for both RFE/RL and RFA. The Board's authorities include:

• To review and evaluate the mission and operation of, and assess the quality, effectiveness, and professional integrity of, all such activities within the broad foreign policy objectives of the United States;

• To make and supervise grants for broadcasting and related activities for RFE/RL and RFA;

• To review, evaluate and determine, at least annually, the addition or deletion of language services; and

• To allocate funds appropriated for international broadcasting activities among the various elements of the IBB and grantees, subject to reprogramming notification.

In total, the BBG broadcasting entities transmit over 2,000 hours of weekly programming in 61 languages to over 100 million weekly listeners worldwide.

The Privacy Act of 1974 (5 U.S.C. 552a) is a Federal law which requires Federal agencies to limit the manner in which they collect, use and disclose information about American citizens or lawful permanent residents of the United States. The Privacy Act also provides that, upon request, an individual has the right to access any record maintained on herself/himself in an agency's files, and has the right to request correction of or amendment to that record.

In accordance with 5 U.S.C. 605(b), the BBG certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered to be a significant regulatory action within the meaning of section 3(f) of Executive Order 12866, nor does this rule have Federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612.

On May 1, 2001, we published in the Federal Register [66 FR 21717] a notice of proposed rulemaking (NPRM) entitled, “Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels”. We received 46 letters commenting on the proposed rule. No public hearing was requested and none was held.

The NPRM followed two published notices of request for comments, both titled “Recreational Boating Safety—Federal Requirements for Wearing Personal Flotation Devices,” under the docket number CGD 97-059. This first appeared in the Federal Register on September 25, 1997 [62 FR 50280]; the second, which extended the comment period, on March 20, 1998 [63 FR 13586]. The comments received in response to these notices were discussed in the NPRM [66 FR 21717].

After summarizing the comments received in response to the NPRM, we consulted the National Boating Safety Advisory Council (NBSAC) at its meeting in October 2001 regarding the results. NBSAC recommended that we proceed to publish a final rule, as proposed.

The number of deaths by drowning of children under 13 has decreased from 26 in 1995 to 11 in 1998. A review of statistics on recreational-boating accidents during 1998 showed that the rate of children drowning in States that require children to wear lifejackets (1.22 such drownings for every 1000 accidents) is lower than that of States that do not (1.31 such drownings for every 1000 accidents).

By late 1995, 26 States had enacted statutes requiring children to wear lifejackets while aboard recreational vessels. The requirements, however, were not consistent nationwide, affecting children of different ages, while aboard vessels of different sizes, and engaged in different activities. By late 1999, 36 States had enacted statutes requiring children to wear lifejackets while aboard recreational vessels. The requirements, however, still were not consistent nationwide. They varied by the age for wearing: from under age 18, when the vessel operator is under 18, to under age 6. They varied in other particulars, too: on the sizes of vessels (more than 26 feet in length; or less than 65 feet, 26 feet, 19 feet, 18 feet, or 16 feet in length); whether the vessels were under way, in motion, or not specified; and whether the children were on open decks, below decks, or in enclosed cabins.

To improve boating safety and encourage greater uniformity of boating laws, we are instating a requirement that children under 13 wear lifejackets approved by the Coast Guard while aboard vessels under way, except when the children are below decks or in enclosed cabins. We are nevertheless proposing to adopt the ages at or below which the States require children to wear lifejackets within those States. The existence of a Federal requirement for children to wear lifejackets under specific circumstances, even one that adopts States' thresholds of age, will encourage States to establish their own requirements for children and will draw the several requirements into greater uniformity nationwide.

By the close of the comment period on August 30, 2001, we received 46 comments from the following categories:

The National Transportation Safety Board (NTSB). Twenty-two comments supported the rule as proposed, eight supported it with changes, and sixteen opposed it.

Most of the comments that supported the rule as proposed stated that the rule would be a positive step toward reducing drownings and toward a uniform requirement across the States. Two comments indicated that requiring children to wear PFDs would make boating safer and more pleasant for parents because parents themselves often wear PFDs, again to influence children. Parents also know that mishaps happen quickly and that they cannot always watch children on a boat so use of PFDs increases their sense of safety. In separate comments, two agencies in North Carolina stated that that State's data on drownings indicate that most children who drowned there were not wearing PFDs at the time of the incidents.

Eight comments either suggested helpful changes or stated that they could support the rule, or at least not object to it if certain changes were made.

Two comments requested that the rule allow the use of automatic, inflatable PFDs or safety harnesses on all vessels or at least on every vessel more than 21 feet in length.

But the proposed rule did not intend to prohibit the use of inflatable PFDs for children. The Coast Guard has already approved automatic, hybrid, inflatable PFDs for children, which means these PFDs meet the requirements of this final rule. Once the Coast Guard has approved automatic, fully inflatable PFDs for children to wear, such devices will also meet these requirements. This rule also does not prohibit the use of a safety harness, but does not allow safety harnesses to substitute for wearable PFDs. The Coast Guard has decided not to revise this rule to take account of these two comments, because the rule anticipates them.

One comment suggested limiting the rule to children on boats less than 18 feet that are under way or making way, while another suggested limiting it to children on the decks of vessels more than 65 feet.

The Coast Guard has no data indicating any specific length above which children become safe even without wearing lifejackets. Therefore, we have retained the wearing requirement as proposed without any such length.

Several comments asked the Coast Guard to lower the age limit because many 12-year-olds are better swimmers than many adults. One comment suggested that the age be lowered to 6 years old when a vessel is not under way. Another comment recommended exempting those children who have passed a swimming course or a swimming-proficiency test.

In a study of Recreational Boating Safety Study from 1993, NTSB recommended that the Coast Guard work with the National Association of State Boating Law Administrators (NASBLA) and the American Academy of Pediatrics to develop “a uniform component of standards that establishes an age at or below which all children should be required by all States to wear personal flotation devices while in recreational boats.” NTSB proposed this strategy instead of one that would set specific Federal age-based requirements for wearing PFDs. The Coast Guard, these two organizations, and others endorsed mandatory use of lifejackets for children 12 and under. The other organizations were the National Safety Council, NBSAC, the U.S. Coast Guard Auxiliary, the National Water Safety Congress, the National Recreational Boating Safety Coalition, the National Safe Boating Council, the National Marine Manufacturers Association, the PFD Manufacturers Association, the American Medical Association, the American Camping Association, and the National Safe Kids Campaign. At least 14 States selected the same age-based requirements for children to wear lifejackets, either under 13 years or 12 years and under, which squares with the recent recommendations of NBSAC and NTSB.

Therefore, we have retained in this final rule the age-based requirement as proposed. The Coast Guard has decided to not preempt the States from setting their own wearing requirements different than the Federal ones.

Another comment suggested that the current wording of “appropriate PFDs” is too vague and requested that the “appropriate” be replaced with “a Type I, II, III, or V PFD.”

In the preamble to the NPRM [66 FR 21717], under paragraph 2 of the discussion of the proposed rule for section 175.15, we stated that the proposed requirement would be to wear lifejackets approved by the Coast Guard. We agree with the comment and have revised this section to read, “ * * * appropriate PFDs approved by the Coast Guard.”

In its comment, the NTSB requested that the Coast Guard reconsider allowing States to set their own age-based requirements, even if lower than 12 years old. The NTSB urged the Coast Guard to establish a uniform standard for the mandatory use of PFDs for all children under age 13. According to NTSB, a national standard would help parents and law-enforcement agencies by minimizing confusion about which children must wear PFDs in which States. Another comment also asked that the rule preempt the different age-based requirements from State to State.

Again, the Coast Guard has decided not to preempt the States from setting their own wearing requirements different from the Federal ones.

Seven of the sixteen opposing comments stated that mandatory use of lifejackets is a State issue.

One comment expressed concern that Federal action would interfere with individual State efforts to mandate use of PFDs. It and another suggested that each State be allowed to continue drafting laws tailored to its own distinct waters and boating community. Another comment stated that the low number of children's drownings that appear in national statistics indicate that States are handling the issue properly. Two others disapproved of a Federal requirement because it would create confusion at a time when most States already require that children wear lifejackets. One of those, from the Virginia Department of Game and Inland Fisheries, stated that, because under the proposed rule States would continue to enforce existing age limits, it is “unclear how [that rule] would encourage greater uniformity of boating laws.” It added that Virginia's own data on boating accidents did not support imposing the requirement on “potentially hundreds of thousands of ‘recreational vessel users'.”

This final rule acknowledges the law-enforcement efforts of the many States that already require children under specific ages to wear lifejackets while on board recreational vessels and, by adopting the ages for wearing lifejackets within those States, does not interfere with those efforts. It adds authority for boarding officers of the Coast Guard, enforcing Federal law, to support those efforts. Further, it encourages other States to undertake their own such efforts and yet does so without imposing a Federal mandate.

Other opposing comments stated that national statistics do not warrant a Federal rule, and one suggested that the Coast Guard focus on education rather than regulation. Another questioned whether the Coast Guard's own statistics supported the rule. It stated that some entries in the Boating Accident Reporting Database (BARD) first report deaths as due to drownings, which coroners later conclude were actually due to carbon-monoxide poison. Another responded that the data indicate that the rule would not have saved most children who drowned; and it concluded that age 12 “is certainly too old.”

The Coast Guard has fostered and will continue to foster safety in recreational boating through education and public awareness. However, we disagree with the comments implying that our boarding officers should not be authorized to support States' law-enforcement officers from enforcing requirements for children to wear lifejackets within the States with such requirements. Further, the nationwide requirement for children to wear lifejackets will encourage other States to enact such requirements. Its applying “under 13” agrees with recommendations from NBSAC and the NTSB. Therefore, we have retained the age-based requirement as proposed.

Other comments objecting to the rule noted the Coast Guard's limited funds for enforcement. One stated that because most States already have a mandated age limit, generally 12, the Coast Guard would be wasting valuable man-hours handing out citations like parking tickets. It also voiced concern that the citations could lead to higher insurance costs for individual boaters. Another stated that a Federal rule would be ineffective because there would be no added funding for enforcement.

In the preamble to the NPRM, under paragraph 1 of the Regulatory Evaluation discussing the costs of the proposed rule, we stated that, “* * * the Coast Guard already trains its Boarding Officers to check safety equipment.” The Coast Guard has decided that the proposed rule anticipates these comments and adopts that rule, unchanged in these respects, as final.

Three comments voiced concern that the proposed rule did not consider how uncomfortable lifejackets can be for children, especially those boating in hot, humid climates. One of the three stated that children wearing lifejackets in those climates could suffer heat stroke and argued that the rule would discriminate against children who are under 13 but who are good, even excellent, swimmers. Another added that the Coast Guard could reduce the number of drownings more effectively if it focused educational campaigns on adults who use canoes and johnboats to go fishing or bird watching. These people view boating only as a means to doing the primary activity, so they may not be as aware of boating safety as boaters with children on board.

Some models and types of lifejackets are more comfortable than others, and designs are ever-evolving. Voluntary swimming is not the same as involuntary swimming after falling overboard or after a collision. Again, the Coast Guard has fostered and will continue to foster recreational boating safety through education and public awareness, even where boating is involved but where it is not the primary activity. The Coast Guard adopts the proposed rule, unchanged in these respects, as final.

Other comments stated that the decision whether to place a child in a lifejacket should belong to the parents or guardians and that the government cannot protect people from their own poor judgment.

The final rule does not preclude parents and guardians from the exercise of good judgment, but it does prohibit the operator of the boat from getting under way until each child onboard is wearing a lifejacket. The rule is likely to have the same effect on the judgment of parents and guardians as laws that require the use of seatbelts and special seats for children in cars. Even if “government cannot protect people from their own poor judgment,” it can protect some people from some others' poor judgment. The Coast Guard adopts the proposed rule, unchanged in these respects, as final.

This final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)[44 FR 11040 (February 26, 1979)].

A final Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT follows:

This rule imposes no costs on the boating public. Existing rules require the carriage of an appropriate lifejacket for each passenger. Costs to the Government are non-existent as well because the Coast Guard already trains its Boarding Officers to check safety equipment when boarding recreational vessels.

This rule is appropriate because, even though statistics on boating accidents show that the actual numbers of children under 13 that drowned in recent years were relatively small (14 in 1998, 14 in 1999, and 7 in 2000), these few drownings were avoidable. The rule should reduce the number of children under 13 that drown every year because they are not wearing lifejackets.

This rule affects only those States that have not enacted requirements for children to wear lifejackets. In those States, there were 7 fatal drownings and 1 moderate and 3 critical near-drowning injuries of children under 13 from 1996 through 2000. These injuries and drownings might have been prevented if the children had worn lifejackets. (These numbers may overstate the number of lives that could have been saved if the children had worn lifejackets: Narratives in accident reports may fail to disclose circumstances in which the victims were pinned, for example, and would have drowned anyway. Yet they may also understate the number of lives that could have been saved: Many accidents go unreported entirely.)

A memorandum from the Office of the Secretary of Transportation, dated January 29, 2002, sets the benefit of averting an accidental fatality in regulatory analyses at $3.0 million. Another memorandum from that Office, dated January 8, 1993, advises agencies within the Department to classify injuries as minor, moderate, serious, severe, critical, or fatal. The latter memorandum also assigns to each degree of injury averted a certain percentage of the value of society's willingness to pay to avert a fatality. To calculate the value of society's willingness to pay to avert each degree of injury, we multiplied $3.0 million by the percentage assigned to each degree of injury averted.

If we consider a 100% rate of compliance with a requirement for children to wear lifejackets, we can calculate the retrospective benefits of this rule as below:

The total value of injuries and fatalities averted for 1996-2000 would have been $27,909,000. Therefore, the average annual value of injuries and fatalities averted would have been $5,581,800, calculated as ($27,909,000)/(5 years).

Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have considered whether this final rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This Federal requirement for children under 13 to wear lifejackets applies to operators of recreational vessels on waters subject to the jurisdiction of the United States (as defined in 33 CFR 2.05-30). It will continue to apply to operators of recreational vessels owned in the United States, while operating on the high seas (as defined in 33 CFR 2.05-1). Further, since this requirement adopts the ages at or below which States require children to wear lifejackets, operators of recreational vessels either in States with such requirements or on navigable waters of the United States outside States altogether are subject to it.

Because the Regulatory Flexibility Act does not apply to individuals, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule does not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Public Law 104-121], we have offered to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Carlton Perry, Project Manager, Office of Boating Safety, by telephone at 202-267-0979, or by e-mail at cperry@comdt.uscg.mil .

Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal rules to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].

We have analyzed this final rule under Executive Order 13132 and have determined that, because the Federal requirement for children under 13 to wear lifejackets will not supersede or preempt any State's comparable requirement, this rule does not have implications for federalism under that Order. The Federal requirement applies only in States without comparable requirements.

The Unfunded Mandates Reform Act of 1995 [2 U.S.C. 1531-1538] governs the issuance of Federal rules that impose unfunded mandates. An unfunded mandate is a requirement that a State, local, or tribal government, or the private sector incur direct costs without the Federal Government's having first provided the funds to pay those costs. This final rule does not impose an unfunded mandate.

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

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

We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule. Nor does it create an environmental risk to health or risk to safety that may disproportionately affect children; on the contrary, it advances the welfare of children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs within OMB as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this final rule and concluded that, under figure 2-1, paragraph (34)(a), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The rule requires that certain children aboard recreational vessels wear lifejackets. A Determination of Categorical Exclusion is available in the docket where indicated under ADDRESSES.

The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. A Notice of Proposed Rulemaking was published on January 24, 2002 (67 FR 3465). Interested parties have been afforded an opportunity to participate in the making of the amendments applicable in the United States. No comments were received. The amendments are described in the following summary.

Under agreement with the SLSMC, the SLSDC is amending the joint regulations to make compliance with applicable Great Lakes shipping industry codes for ballast water management practices a mandatory prerequisite for clearance of a commercial vessel for transit of the Seaway system in support of assuring the continued control of the introduction of aquatic nuisance species (ANS) in the Great Lakes Seaway System. This requirement will go into effect beginning in the 2002 navigation season. This is in addition to the existing U.S. and Canadian legal ballast water requirements as well as the tremendous amount of undertakings at the international, national, and regional levels by government and the private sector regarding control of ANS. This rule is one more effort in the commitment of many to find a cost-effective solution that protects the Great Lakes Seaway System from ANS while facilitating commerce. Specifically, the SLSDC, along with the SLSMC, is amending the Seaway Regulations and Rules in Part 401 of title 33 of the Code of Federal Regulations by adding a new subsection (d) to § 401.30, “Adequate ballast and proper trim,” which section is retitled “Ballast water and trim.” This new subsection requires that, to obtain clearance to transit the Seaway, every vessel entering the Seaway must agree to comply with the applicable, existing industry ballast water management practices while operating anywhere within the Great Lakes and the Seaway. This involves two types of vessels and two codes of practice respectively. Every vessel entering the Seaway after operating beyond the exclusive economic zone must agree to comply with the “Code of Best Practices for Ballast Water Management” of the Shipping Federation of Canada dated September 28, 2000. That code reads as follows:

These Federation practices already cover approximately 95% of the commercial oceangoing vessels using the Seaway.

Every other vessel entering the Seaway that operates within the Great Lakes and the Seaway must agree to comply with the “Voluntary Management Practices to Reduce the Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and Canadian Domestic Shipping” of the Lake Carriers Association and Canadian Shipowners Association dated January 26, 2001. That code reads as follows:

These rules already cover nearly 100% of the commercial non-oceangoing vessels (lakers) using the Seaway. The texts of both of these codes will be printed in the “Seaway Handbook,” which is distributed to Seaway users by the SLSMC and the SLSDC and is also posted on the joint “Great Lakes St. Lawrence Seaway System Web” site, which can be found at http://www.greatlakes-seaway.com/en/pdf/handbook.pdf. The SLSDC and the SLSMC will assess the effectiveness of this regulation after the 2002 Seaway navigation season.

This regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply. This regulation has also been evaluated under the Department of Transportation's Regulatory Policies and Procedures and the regulation is not considered significant under those procedures and its economic impact is expected to be so minimal that a full economic evaluation is not warranted.

The Saint Lawrence Seaway Development Corporation certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Tariff of Tolls primarily relates to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of human environment. The environmental considerations applicable to the basic substance of this regulation are essentially discussed in the U.S. Coast Guard's Environmental Assessment for its May 17, 1999, “Implementation of the National Invasive Species Act of 1996” rulemaking (64 FR 26672).

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, Dated August 4, 1999, and has determined that the rule does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.

The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, Part 100 and Title 36, part 242 of the Code of Federal Regulations (CFR). Consistent with Subparts A, B, and C of these regulations, as revised January 8, 1999, (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual Subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2001-2002 wildlife seasons, harvest limits, and methods and means were published on June 25, 2001 (66 FR 33744). Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical closures and adjustments would apply to 36 CFR part 242 and 50 CFR part 100.

The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Game (BOG), manages the general harvest and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.

The temporary changes for early closure of seasons are necessary to protect declining goat populations in the Yakutat area, and the establishment of a limited winter moose season on a portion of the Seward Peninsula is needed to provide harvest opportunity for those rural residents that have customary and direct dependence on the resource, while helping the declining moose populations recover. This temporary change is authorized by and in accordance with 50 CFR 100.19(e) and 36 CFR 242.19(e).

Goat harvest in the area of Unit 5(A), which drains into Russell and Nunatak Fiords between Hubbard and West Nunatak Glaciers, has increased significantly over the past 3 years. A harvest of 10 goats was recorded in 1998, a high of 16 were taken in 1999, and 8 goats were taken in 2000. Previous to these 3 years the reported goat harvest for this area has averaged 2.2 goats per year. Recent aerial survey information from 2000 and 2001 indicates a declining trend in the goat population in this area. The decline is possibly the result of an over harvest of mature females, affecting population recruitment.

A conservation concern, for this area, was first recognized in early December 2000 when the harvest exceeded 5% of the estimated population. Both the State of Alaska and the Federal Subsistence Board responded to the situation by closing the goat harvest seasons for the area of Unit 5(A) draining into Russell and Nunatak Fiords between Hubbard and West Nunatak Glaciers.

Following the 2001 aerial survey of the population, the Alaska Department of Fish and Game, through Emergency Order No. 01-03-01, closed the goat season in the areas of Unit 5(A) between Hubbard and West Nunatak Glaciers, on October 12, 2001. On October 16, 2001, the Federal Subsistence Board adopted a special action request submitted by the Tongass National Forest to similarly close the Federal harvest season. This emergency action, effective for 60 days (October 17, 2001-December 15, 2001) closed the area draining into Russell and Nunatak Fiords between Hubbard and West Nunatak Glaciers to the taking of goats. The harvest season for the remainder of Unit 5(A) continued to have a harvest limit of 1 goat by Federal registration permit with the season from August 1-January 31.

On November 8, 2001, a public meeting was held in Yakutat, Alaska on behalf of the Federal Subsistence Board to obtain public comments on a possible extension of the existing emergency action through the remainder of the regulatory season. Public testimony at the meeting was unanimous in favor of extending the closure through the remainder of the regulatory season.

On November 30, 2001, the Forest Service biologists conducted another aerial survey of the subject goat population, the results of which indicated a continuing decline in the goat population.

On December 11, 2001, the Federal Subsistence Board, recognizing that a conservation concern still exists, approved the temporary action to continue the closure, through the remainder of the regulatory season. This regulatory action was intended to aid in the population recovery of the goat population in Unit 5(A).

Moose populations in Unit 22(B) west of the Darby Mountains have declined in recent years, along with moose populations throughout the management unit. Overall populations in Unit 22 ranged from 7,000 to 10,000 during the late 1980's to recent estimates of 5,000 to 7,000 animals. The declines are thought to be a result of winter mortality and lower calf survival, resulting in a population recruitment that has been below the annual harvest. Recruitment in 2000 for Unit 22(B) west of the Darby Mountains was estimated at only 48 moose, with a harvest of approximately 68 moose. The Federal subsistence moose harvest in Unit 22(B) was restricted to bulls by the Federal Subsistence Board in the fall of 2000 due to this declining local moose population and heavy hunting pressure.

On July 13, 2001, the Alaska Department of Fish and Game using their emergency authority, shortened, but did not close, moose hunting seasons in four portions of Unit 22, including Unit 22(B) west of the Darby Mountains. The State's justification for this action was that moose populations in the area cannot sustain recent harvest levels, and that recent surveys indicated moose densities, recruitment rates, and bull:cow ratios are low and declining.

On July 31, 2001, the Federal Subsistence Board approved emergency action (effective for 60 days) to make similar adjustments in the Federal Subsistence Harvest Regulations. In addition, these areas of concern were closed to the taking of moose except by Federally-qualified subsistence users, as recommended by the Seward Peninsula Subsistence Regional Advisory Council. The specific changes for Unit 22(B) west of the Darby Mountains was to close the harvest season on September 14, and to close Federal public lands to the taking of moose except by Federally-qualified subsistence users.

On September 26, 2001, a public meeting was held in Nome, Alaska, to obtain public comments on a request from the Seward Peninsula Regional Advisory Council to continue the existing emergency action through the remainder of the regulatory season. The Regional Council also requested that Federal public lands in Unit 22(B) west of the Darby Mountains be closed to the taking of moose except by residents of Unit 22(B), and that a harvest quota be established for a winter hunt to take place January 1-31, 2002.

On September 27, 2001, the Federal Subsistence Board approved temporary action to reduce the length of the harvest season in most Unit 22 subunits, as requested by the Seward Peninsula Regional Advisory Council. The resulting action for Unit 22(B) west of the Darby Mountains, however, was to identify a—“No Federal open season.” The Federal Subsistence Board expressed its intention to consider additional action prior to January 2002, to provide for a winter harvest season in Unit 22(B) west of the Darby Mountains, following an analysis of the Council's proposal to restrict the taking of moose to only residents of the subunit.

On November 16, 2001 the Federal Subsistence Board adopted temporary action to open a winter harvest season (January 1-31, 2002) for moose in Unit 22(B) west of the Darby Mountains with a harvest quota of 6 bulls. The harvest will be implemented through the use of Federal registration permits, and Federal public lands will be closed to the taking of moose except by residents of Unit 22(B) west of the Darby Mountains (residents of White Mountain and Golovin). The Board's decision was based upon the application of the criteria set forth in Section 804 of ANILCA. The analysis concluded that good documentation exists that indicates the rural residents of Unit 22(B) are and historically have been the primary users of the moose in Unit 22(B). Specifically, the residents of White Mountain and Golovin are the primary users of moose in Unit 22(B) west of the Darby Mountains. These rural residents also live closest to the resource in question. In the winter, the residents of White Mountain and Golovin rely almost exclusively on the moose in Unit 22(B) west of the Darby Mountains. It is extremely difficult and hazardous for them to travel elsewhere in winter for this important primary resource. The Federal Subsistence Board recognized that the residents of Nome hunt a considerable number of moose in Unit 22(B); however, they also hunt moose in a wide variety of other areas and their primary moose hunting during the winter season takes place in Unit 22(D). Therefore, a restriction that applies to the winter hunt should have little or no effect on Nome residents, as Nome resident use of Unit 22(B) west of the Darby Mountains is primarily in the fall. The Board also recognized that many Nome residents are involved in the cash economy and have access to a wide variety of other resources.

The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for these emergency actions are impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate conservation measures could seriously affect the continued viability of wildlife populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of these actions and pursuant to 5 U.S.C. 553(d)(3) to make this rule effective as indicated in the DATES section.

A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999 (64 FR 1276).

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

Paperwork Reduction Act—This notice contains information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995. It applies to the use of public lands in Alaska. The information collection requirements are approved by OMB under 44 U.S.C. 3501 and have been assigned clearance number 1018-0075, which expires July 31, 2003. Federal agencies 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.

Currently, information in the Subsistence Management Program is being collected by the use of a Federal Subsistence Registration Permit and Designated Harvester Application. The information collected on these two permits establishes whether an applicant qualifies to participate in a Federal subsistence hunt on public land in Alaska and provides a report of harvest and the location of harvest. The collected information is necessary to determine harvest success, harvest location, and population health in order to make management decisions relative to the conservation of healthy wildlife populations. Additional harvest information is obtained from harvest reports submitted to the State of Alaska. The recordkeeping burden for this aspect of the program is negligible (1 hour or less). This information is accessed via computer data base.

You may direct comments on the burden estimate or any other aspect of this form to: Information Collection Officer, U.S. Fish and Wildlife Service, 1849 C Street, NW, MS 224 ARLSQ, Washington, DC 20240; and the Office of Management and Budget, Paperwork Reduction Project (Subsistence), Washington, DC 20503. Additional information collection requirements may be imposed if local advisory committees subject to the Federal Advisory Committee Act are established under subpart B. Such requirements will be submitted to OMB for approval prior to their implementation.

These temporary changes have been exempted from OMB review under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant economic impact on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as gun and ammunition dealers. The number of small entities affected is unknown; but, the effects will be seasonally and geographically-limited in nature and will likely not be significant. The Departments certify that the temporary changes will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the temporary changes have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that the temporary changes will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

These actions are not significant regulatory actions under Executive Order 12866, nor will they raise novel legal or policy issues.

The Secretaries have determined that the temporary changes meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the temporary changes do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over fish and wildlife resources on Federal lands.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As these actions are not expected to significantly affect energy supply, distribution, or use, they are not significant energy actions and no Statement of Energy Effects is required.

Daniel LaPlant drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Greg Bos, Alaska Regional Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch, Alaska Regional Office, National Park Service; Ida Hildebrand, Alaska Regional Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest Service, provided additional guidance.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provides for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.

The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, part 100 and title 36, part 242 of the Code of Federal Regulations (CFR). Consistent with Subparts A, B, and C of these regulations, as revised January 8, 1999, (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts, A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual Subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2001 fishing seasons, harvest limits and methods and means were published on February 13, 2001, (66 FR 10142). Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical closures and adjustments would apply to 36 CFR part 242 and 50 CFR part 100.

The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Fisheries (BOF), manages sport, commercial, personal use, and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.

This emergency action was necessary because of predictions of low returns of coho salmon in the Klawock River and Lake. This emergency action is authorized and in accordance with 50 CFR 100.19(d) and 36 CFR 242.19(d).

To date, the total return has been 4,381 coho salmon. This represents approximately 75% of the escapement objective of 6,000 coho salmon. Coho salmon are still entering the system and have been seen in the system as late as February. Fishing pressure at this time is low. Along with an Emergency Order issued by the Alaska Department of Fish and Game closing sport fishing, reducing the daily harvest coho salmon while conserving stocks needed to reach spawning escapement goals.

On November 2, 2001, the Federal Subsistence Board, acting through the delegated field official, initiated a coho salmon action reducing the daily harvest limit to two fish in the Klawock River and Lake for the period from November 2, 2001, through December 31, 2001. This action was necessary due to low coho salmon returns.

This regulatory action was necessary to assure the continued viability of the coho salmon runs and provide a long-term subsistence priority during a period of limited harvest opportunity.

The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for this emergency closure are impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate conservation measures could seriously affect the continued viability of fish populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of this action and pursuant to 5 U.S.C. 553(d) to make this effective as indicated in the DATES section.

A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999, (64 FR 1276.)

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part oft he FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

The emergency closure does not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995.

The emergency closure has been exempted from OMB review under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small business, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as boat, fishing tackle, and gasoline dealers. The number of small entities affected is unknown; but, the effects will be seasonally and geographically-limited in nature and will likely not be significant. The Departments certify that the emergency closure will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the emergency closure has no potential takings of private property implications as defined by Executive Order 12630.

The Servicer has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. that the emergency closure will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that the emergency closure meets the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the emergency closure does not have sufficient federalism implications to warrant the preparation of Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over fish and wildlife resources on Federal lands. Cooperative salmon run assessment effects with ADF&G will continue.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy when undertaking certain actions. As this action is not expected to significantly affect energy supply, distribution, or use, it is not a significant energy action and no Statement of Energy Effects is required.

William Knauer drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Rod Simons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob Gerhard, Alaska Regional Office, National Park Service; Ida Hildebrand, Alaska Regional Office, Bureau of Indian Affairs, and Ken Thompson, USDA-Forest Service, provided additional guidance.

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

On April 5, 1991, the State of California submitted a revision to Rule 4103 in the SJVUAPCD portion of the SIP, which we disapproved in part on July 25, 2000 (65 FR 45912). Our disapproval action started an 18-month clock beginning on August 25, 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 4103 and new Rule 4106 on October 30, 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 proposed 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 25, 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 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely 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 27, 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 rules we are approving with the date that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On January 18, 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 26, 2000 (65 FR 45912) a version of Rule 4103, adopted on December 16, 1993. Rule 4106 is a new rule.

The purpose of the submitted revised Rules 4103 and 4106 are to remedy the deficiencies cited in the limited approval of Rule 4103 on July 26, 2000 (65 FR 45912).

Generally, SIP rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193). Section 189(b) of the CAA requires serious nonattainment areas with significant PM-10 sources to adopt best available control measures (BACM), including best available control technology (BACT). SJVUAPCD is a serious PM-10 nonattainment area and must meet the requirements of BACM/BACT. BACM/BACT is not required for source categories that are not significant ( de minimus ) and there are no major sources. See Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August 16, 1994).

The following guidance documents were used for reference:

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

• General Preamble Appendix C3—Prescribed Burning Control Measures (57 FR 18072, April 28, 1992).

• Prescribed Burning Background Document and Technical Information Document for Best Available Control Measures (EPA-450/2-92-003).

• General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).

• Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August 16, 1994).

We believe the rules are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and fulfilling BACM/BACT. All of the deficiencies identified in our previous limited approval and limited disapproval action on Rule 4103 have been adequately addressed as follows:

• (Burning to prevent an imminent fire hazard that cannot be abated by other means should be done on a permissive-burn day.) The exemption from all provisions of Rule 4103 for an imminent fire hazard that cannot be abated by other means is still included in the rule and could allow burning on a no-burn day. 4103.4.1.2. There is no exemption for hazard reduction burning, which is allowed only on a permissive-burn day. 4106.5.1.4. We concur with the District's argument that burning allowed in the case of an imminent fire hazard could remedy a dangerous fire hazard instead of waiting for a permissive-burn day and is an appropriate measure. Hazard reduction burning is a less imminent form of hazard, and it is appropriate to require such burning on a permissive-burn day. The exemption for an imminent fire hazard fulfills the requirements of BACM.

• (Burning training should be done on permissive-burn days or should be limited to a short time or small amount of fuel.) The District has argued that it is very difficult to schedule personnel in advance from different locations in a large District of eight counties for training that coincides with a permissive-burn day, which often does not occur for many consecutive days. We concur that the exemption from the rule for fire-fighting training, which could allow burning on no-burn days, is reasonable. However, the exemption was restricted to require written authorization from the Air Pollution Control Officer (APCO) for all necessary fire-fighting training activities and to require that a burn plan be submitted and receive prior approval from the APCO for any fire-fighting training activities not located at a stationary fire-training facility. 4103.4.2.1 and 4103.6.2.1. This restricted exemption for burning training fulfills the requirements of BACM.

• (The addition of the exemption to burn on no-burn days for disease and pest prevention, where there is no reasonable alternative, is a SIP relaxation.) The District argued that Rules 4103 and 4106 are more stringent overall than the SIP rule given a limited approval/limited disapproval, therefore this minor and unpredictable relaxation does not violate section 110(l) of the CAA. We concur with the District's argument that this exemption, which could allow burning on no-burn days, is a necessary and appropriate measure for timely control of unplanned natural infestations where there is no reasonable alternative. This exemption is restricted to require that such burning only be done after written authorization from the APCO. 4103.4.2. This restricted exemption for disease and pest prevention fulfills the requirements of BACM.

• (Empty pesticide sacks should be burned on permissive-burn days unless the source category is de minimums .) The exemption to burn on no-burn days was expanded to include toxic substances other than pesticides but to not include fertilizer sacks. 4103.4.3.1. The District showed that this source category is almost de minimums , since it accounts for only 1.4% of the total PM-10 emissions. They argue that it is less hazardous to burn empty pesticide and hazardous material sacks in the field where emptied than to transport and store them while waiting to burn on a permissive-burn day. Furthermore, such burning is still restricted by permit requirements and subject to the tonnage allocation by the APCO to prevent an exceedance of the National Ambient Air Quality Standards (NAAQS) even on a no-burn day. This restricted exemption for empty pesticide and toxic material sacks fulfills the requirements of BACM.

• (Tumbleweeds should be burned with a permit on a permissive-burn day.) This is implemented. 4103.5.8.

• (Range improvement burning (a type of prescribed burning) from January 1 to May 31 should occur on a permissive-burn day.) This is implemented. 4106.4.9.5.

• (Agricultural burning (a type of prescribed burning) for growing crops or raising fowl or animals above 3,000 feet elevation should occur on a permissive-burn day.) This is implemented. 4106.4.9.5.

• (Agricultural burning above 6,000 feet elevation should occur on permissive-burn days.) This is implemented. 4106.4.9.5.

• (Excessive Director's discretion in granting permission for agricultural burning on no-burn days in the event of imminent and substantial economic loss should be restricted by allowing only the acreage to be burned as limited by meteorological conditions and meeting the NAAQS.) Director's discretion for the exemption to burn in the case of imminent and substantial economic loss, which could occur on no-burn days, is restricted by limiting burning acreage to 200 acres per county per day, by requiring a forecast by the District that the NAAQS will be not be violated in downwind metropolitan areas, and by requiring that burning not be prohibited by a fire agency for safety reasons. 4103.4.3.3. This restricted exemption for imminent and substantial economic loss fulfills the requirements of enforceability and BACM.

• (BACM may require an overall approach of approving burns based on an evaluation of the airshed's capacity to disperse emissions on permissive-burn days so that cumulative emissions from all burns and PM-10 sources will not cause a violation of the NAAQS.) The District is required to allocate burning based on predicted meteorological conditions and whether the total tonnage to be emitted would allow the volume of smoke and other contaminants to impact smoke sensitive areas or create or contribute to an exceedance of the NAAQS. 4103.5.2 and 4106.4.2. This measure for an overall approach to allocation of burning fulfills the requirements of BACM.

• (BACM may require burner training.) Burner training in a course approved by the APCO is required for prescribed burns over 10 acres. 4106.4.9.1. This measure for burner training fulfills the requirements of BACM.

• (BACM may require the use of the best emission reduction efforts for prescribed burning and describing them in a smoke management plan.) The use of various best management practices is required. 4106.4.9. Extensive requirements for smoke management plans are described. 4106.5.2. These measures for best emission reduction efforts fulfill the requirements of BACM.

• (BACM may include second level smoke evaluation, which analyzes whether existing fires should be extinguished.) A land manager must coordinate daily with the District or CARB for multi-day burns to affirm that the burn project remains within the conditions specified in the smoke management plan. 4106.4.9.2. Surveillance and contingency plans are required for burns over 100 acres for actions to be taken if smoke impacts occur in smoke-sensitive areas. 4106.5.2.3. A related issue is whether to allow a naturally-ignited fire to continue in order to achieve a resource benefit. Requirements regulating this issue are provided. 4106.5.3. This measure fulfills the requirements of BACM.

An exemption was added that could allow burning paper raisin trays on no-burn days. 4103.4.3.2. The District showed that this source category is de minimus , since it accounts for only 0.32% of the PM-10 emissions during the two-month burning periods in each of years 1997-1999. This exemption for paper raisin trays is not required to fulfill the requirements of BACM. Rules 4103 and 4106 are more stringent overall, therefore section 110(l) of the CAA is not violated.

An exemption was added that could allow burning of confiscated contraband on no-burn days. The District argues that this PM-10 source is de minimus . Furthermore, the relevant law enforcement agency must submit a burn plan 15 days in advance to the APCO for approval. 4103.6.2.2. Also import of contraband from outside the District for burning is prohibited. 4103.5.7.1. This exemption for confiscated contraband is not required to fulfill the requirements of BACM. Rules 4103 and 4106 are more stringent overall, therefore section 110(l) of the CAA is not violated.

The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill 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 rules. If we receive adverse comments by March 29, 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 these rules into the federally-enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions. Table 2 lists some of the national milestones leading to the submittal of local agency PM-10 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).)

Sections 182(b)(2) and 182(f) of the Clean Air Act require major sources in ozone nonattainment areas to implement RACT for the control of NO X . Maryland regulation, COMAR 26.11.09.08, establishes RACT level NO X emission limits for specific types of boilers and other fuel burning equipment. EPA approved Maryland's NO X RACT regulation as a SIP revision on February 8, 2001. Section (B)(3) of COMAR 26.11.09.08 allows sources to apply for an alternative emission standard from those specified in the regulation. Section (B)(4) of COMAR 26.11.09.08 allows sources that own and operate two or more affected units to achieve compliance through system-wide emissions averaging provided that total system-wide NO X emissions would be less than the total emissions achieved through compliance with the applicable unit specific emission standards. Section (B)(4) of COMAR 26.11.09.08 also requires that such an emissions averaging plan be submitted to and approved by EPA as a SIP revision. On April 25, 2001, the State of Maryland submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a Consent Order issued by the Maryland Department of Environment (MDE) to Constellation Power Source Generation, Inc. for an inter-facility averaging plan for NO X emissions at five electric generating facilities. The SIP revision allows Constellation Power to use system-wide emissions averaging to comply with the applicable NO X reasonably available control technology (RACT) limits for 10 boiler units located at the five facilities.

The Consent Order issued by the MDE to Constellation Power Source Generation, Inc. establishes an averaging plan at five electric generating plants as a means of compliance with the NO X RACT requirements. The Consent Order was signed and dated April 16, 2001 and does not expire. The Consent Order applies to the following electric generating installations units owned by Constellation Power in Maryland: Brandon Shores units 1 and 2; Gould Street unit 3; H.A. Wagner units 1, 2, 3 and 4; C. P. Crane units 1 and 2; and Riverside unit 4. Other units located at these installations are not part of the averaging plan and remain subject to unit specific emission limits established in COMAR 26.11.09.08. Constellation Power is required to calculate mass emissions from the affected units on a daily basis, determine compliance with the averaging plan using continuous emissions monitors, and to submit quarterly reports of exceedances to both MDE and EPA. Constellation Power agrees that if it fails to comply with the averaging plan, all sources remain subject to the unit specific emission limits of COMAR 26.11.09.08. The aggregate mass emissions from all units, under the averaging plan, must be less than the mass emissions that would otherwise occur if each unit were subject to the applicable NO X RACT emissions limit. Constellation Power must certify annually that the NO X mass emissions for all ten units are at least five percent less than otherwise allowed by the applicable NO X RACT emission limits. Other provisions in the Consent Order require Constellation Power to notify the MDE and revise the averaging plan if Constellation Power acquires new or additional electric generating units. This provision does not exempt any new or modified units from applicable New Source Review requirements. The Consent Order also contains provisions for transfer of ownership, Title V permits and severability. This Consent Order for NO X RACT averaging does not relieve Constellation Power from the Consent Decree dated November 11, 1999 for compliance with Maryland's NO X Budget Rule (COMAR 26.11.27 and 26.11.28).

Emissions averaging programs are a common form of Economic Incentive Program (EIP). Emissions averaging EIPs provide a source or group of sources flexibility in complying with a rate-based regulatory limit by averaging the rate of pollution one source emits with another source. Averaging enables a source emitting above its allowable emission rate limit to comply with that rate limit by averaging its emissions with a another source(s) emitting below that second source's regulatory limit. Emissions averaging EIPs involve emission units at one or more facilities within the same state. EPA issued guidance to the states in developing EIPs in January 2001, “Improving Air Quality with Economic Incentive Programs”, EPA-452/R-01-001. Maryland's SIP revision for Constellation Power Source Generation's NO X emission averaging plan meets all the applicable requirements and EPA guidance for RACT and EIPs. It also includes appropriate provisions for assuring compliance and enforceability. A more detailed description of EPA's evaluation of the Constellation Power emissions averaging EIP can be found in the technical support document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

EPA is approving Maryland's April 25, 2001 SIP revision which consists of the Consent Order dated April 16, 2001 between MDE and Constellation Power Source Generation, Inc. establishing a system-wide averaging plan to comply with NO X RACT requirements. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on April 29, 2002 without further notice unless EPA receives adverse comment by March 29, 2002. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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 (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. 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 today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for five named facilities.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to approve the Consent Order for Constellation Power Source Generation, Inc. 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).)

States which have received Final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

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

The effect of this decision is that a facility in Delaware subject to RCRA will now have to comply with the authorized Delaware regulatory revisions instead of the equivalent revised Federal requirements in order to comply with RCRA. Delaware has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

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

• Enforce RCRA requirements and suspend or revoke permits, and

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

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

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize Delaware's program changes. If EPA receives comments which oppose this authorization, or portion(s) thereof, that document will serve as a proposal to authorize such changes.

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

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

Delaware initially received Final authorization on June 8, 1984, effective June 22, 1984 (53 FR 23837), to implement the RCRA hazardous waste management program. We granted authorization for changes to its program on August 8, 1996, effective October 7, 1996 (61 FR 41345); August 18, 1998, effective October 19, 1998 (63 FR 44152); and July 12, 2000, effective September 11, 2000 (65 FR 42871).

Please note that in the aforementioned authorization action effective September 11, 2000, Checklist 152 was listed in the program revision summarization table. This checklist includes certain import/export provisions for which States cannot receive authorization. While Delaware adopted the provisions listed in Checklist 152, the revisions listed in 40 CFR 262, subparts E and H will be administered by EPA.

On January 11, 2002, Delaware submitted a final complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Delaware's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Delaware Final authorization for the program changes referenced in its program revision application, which include State regulatory changes that are analogous to various amendments to 40 CFR parts 124, 260 through 266, 268, 270, 273 and 279 that were published in the Federal Register between November 30, 1998 and June 8, 2000.

Delaware is today seeking authority to administer the Federal requirements that are listed in the chart below. This chart also lists the State analogs that are being recognized as equivalent to the corresponding Federal requirements. Unless otherwise indicated, the listed Delaware regulatory references are to the Delaware Regulations Governing Hazardous Waste (DRGHW), as amended and effective as of October 1, 2000 (Checklists 175, 176, 178, 179, 180 and 181) or DRGHW, as amended and effective as of June 11, 2001, (Checklists 183, 184, 185 and 187). The statutory references are to 7 Delaware Code Annotated (1991).

In addition, Delaware will be authorized to carry out, in lieu of the Federal program, State-initiated changes to provisions of the State's Program. The following State-initiated changes are equivalent and analogous to the numerically-identical RCRA provisions found at Title 40 of the Code of Federal Regulations: DRGHW 260.10; 261.3(c)(2)(ii)(D)(2); 261.3(d)(2); 261.4(b)(10); 261.5; 264.1(g)(2); 264.13; 265.13; 265.56(j)(5); 265.194(b)(1); 268.4(a)(3)(ii)(B) and 273.32(a)(1). Two other state-initiated changes being authorized by this notice are DRGHW 122.1(c)(2)(i) and 122.42, which are equivalent and ana1ogous to 40 CFR 270.1(c)(2)(i) and 270.42. Delaware added a “Statement of Authority” prior to Part 260 which does not have an analogue in the Federal program.

Delaware's regulations now require that within 10 days of acceptance by a transporter, a copy of the manifest must be sent to the State in which the generator is located and to the State in which the facility is located. Only the 10-day deadline is a new requirement. The Federal program does not require routine transmission of manifests to States. Therefore, the State requirement remains broader in scope than the Federal program.

After authorization, Delaware will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits, or portions of permits, which we issued prior to the effective date of this authorization until such time as formal transfer of EPA permit responsibility to Delaware occurs and EPA terminates its permits. EPA and Delaware agree to coordinate the administration of permits in order to maintain consistency. EPA will not issue any new permits or new portions of permits for the provisions listed in the chart in section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Delaware is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR 272. We reserve the amendment of 40 CFR part 272, subpart I for this authorization of Delaware's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action does not have tribal implications within meaning of Executive Order 13175 (65 FR 68249, November 6, 2000). This action does not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant and does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the Attorney Generals' “Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report continuing this document and other required information to the U.S. Senate, the U.S. House Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective April 29, 2002.

On December 3, 2001, we published at 66 FR 60176 a proposed rule to increase the rates we charge under the NFIP for flood insurance coverage for pre-FIRM properties located in V-zone areas.

During the comment period, we received four sets of comments. Two writers supported the proposal; two opposed it.

The two supporting the proposal represent insurance companies participating in the NFIP's Write Your Own program. The two opposing the rate changes are a State Coordinator for the NFIP and the Insurance Committee of the Association of State Floodplain Managers, a national association promoting sound floodplain management and flood hazard mitigation as well as flood preparedness, warning and recovery.

One of the insurance companies supporting the proposed rate increase suggested that there should also be a decrease in rates for “very low risk exposures in non-SFHA zones.” (“SFHA” zones are “special flood hazard areas” shown on FEMA's flood maps.)

We are already doing this. The NFIP currently offers lower rates for flood coverage under the Preferred Risk Policy (PRP), available only to properties in Zones B, C, and X. (These zones are areas of moderate or minimal flood hazards from the primary water source.) One may buy a PRP totaling $30,000 worth of building coverage and $8,000 worth of contents coverage for a building without a basement or enclosure for $131—well below the premium for comparable coverage in an A-zone area or a V-zone area. The lower premium we charge for PRPs is consistent with the commenter's recommendation.

The two opponents of the rate change raised questions about the need for a comprehensive approach to reduce flood losses, the amount of the rate increase, the accuracy of the maps used for ratemaking, and erosion mapping. We will address their issues under the headings below.

The Insurance Committee of the Association of State Floodplain Managers (ASFPM) contended “that any rate increase must be part of an overall effort to evaluate all measures to reduce flood losses, and such measures must not be based solely on increasing income by increasing the cost of flood insurance, but need to focus on mitigation measures to reduce claims against the NFIP.”

We agree with this recommendation. This rate increase is part of a comprehensive approach we are currently pursuing to reduce the subsidy for the NFIP. We have also developed strategies for addressing the costliest drain on the NFIP—repetitive loss properties insured under the NFIP. Ten thousand of those properties currently insured under the NFIP have had four or more flood losses, or two or three losses that cumulatively exceed the value of the building. Within the scope of our budget authority for fiscal year 2002, we will target the riskiest flood-prone properties, especially the repetitive flood loss structures, for mitigation activities, such as relocation, elevation, floodproofing, and other mitigation measures through mitigation grants with the States.

This rate increase is only one incremental step in a much larger campaign to reduce the exposure of property to flood damages, insure more of the Nation's property owners against flood loss, and mitigate future flood losses so that we can continue to operate the NFIP on a financially sound basis.

Taking this step—a modest rate increase for the first layer of coverage for pre-FIRM, V-zone properties—is not at odds with nor does it prevent us from proceeding in other areas such as mitigating repetitive flood loss properties, reducing the subsidy for the NFIP, and promoting the sale of flood insurance. We will also continue to use every opportunity, such as this modest rate increase, to reduce the NFIP's subsidy and mitigate future flood damage.

The Insurance Committee of the ASFPM, which opposes the rate increase, also said that the rate increases “range from 10% to 11.5% in rates for pre-FIRM Velocity Zone structures.” This is inaccurate. As we said in the proposed rule, “these proposed increases apply only to the rates for the “first layer” of flood insurance coverage.” It is estimated that the average total premium for all pre-FIRM, V-zone policyholders will increase to $936, an increase of 6.3% over their current average premium.

This rate increase, therefore, falls within the statutory limit for rate increases imposed by Section 572 of the National Flood Insurance Reform Act of 1994, Pub. L. 103-325, 42 U.S.C. 4015. The corresponding rate increases for other classes of property affected by this rule also fall under this statutory limit.

One opponent of the rate increase argued that we should not increase rates for pre-FIRM, V-zone properties since pre-FIRM, V-zone policyholders in the State of Alaska are already paying “far beyond what the already high premiums have paid out in claims.” This opponent also pointed out that a review of the total claims paid for pre-FIRM, V-zone properties in Alaska “does not support the FEMA assertion that pre-FIRM, V-zone properties are ‘a particularly risky class of properties.’ ”

The H. John Heinz III Center for Science, Economics and the Environment, which conducted for FEMA a Congressionally-mandated study evaluating erosion hazards, disagrees with this position. The Heinz Center's report characterizes the “V zone” as the “most hazardous coastal flood risk zone.” (See page 39 of Evaluation of Erosion Hazards, April 2000). The report, which can be found on FEMA's web site at: http://www.fema.gov/library/erosion.pdf, also points out that current insurance rates under the NFIP “do not reflect the magnitude of the erosion risk faced by any individual policyholder.” Since V-zone areas—the areas affected by this rule—contain areas subject to erosion, this rate increase will help close the gap somewhat for this rate insufficiency under the existing mapping authority FEMA has.

We would also point out that there are 4.3 million policies currently in force under the NFIP nationwide; 2,260 flood insurance polices are currently in force in Alaska. Of Alaska's 2,260 flood insurance policies, only eleven (11) are written on properties located in V-zone areas. Those eleven policies for V-zone properties in Alaska do not represent a credible group on which to make ratemaking decisions for pre-FIRM, V-zone properties across the entire country. We need a much larger population of risks to make ratemaking decisions—decisions that will affect similar classes of risks for a national program. We estimate that the proposed rates for first layer V-zone coverage are less than 20% of the full-risk actuarial rate for that layer. We have based this rate increase on the loss experience and loss expectations for all-pre-FIRM, V-zone properties under the NFIP.

Also, we would argue that the limited losses experienced by V-zone properties in Alaska does not result from their lower exposure to loss but rather from the low number of flood insurance policies (eleven) written on properties in Alaska's V-zone areas and the resulting extended time periods needed for the true exposure to emerge.

The commenter says, “A much riskier class of properties appears to be structures subject to the threat of coastal erosion where a large percentage—at least in Alaska—are paying Preferred Risk Premium Rates but probably are subject to catastrophic loss or substantial damage and not located within a mapped flood zone.”

The Heinz Center study for FEMA concluded that the risk to properties in coastal areas is increasing, that the premium rates for flood insurance in coastal areas will in the future be too low, and that Congress should give FEMA the funds and mandate to map areas subject to coastal erosion—about 1/3 of the properties along the coast. Lacking the authority at present to isolate properties in V-zone areas that are subject to erosion risks, this modest rate increase for V-zone properties is a step toward bringing premiums in line with a risk that the Heinz Center study demonstrates is worsening.

The following chart compares the current rates we charge for pre-FIRM, V-zone properties with the rate increases for pre-FIRM, V-zone properties to go into effect May 1, 2002. The rates for pre-FIRM, A-zone properties are unaffected by this change. Also these increases apply only to the rates charged for the “first layer” of flood insurance coverage set by Congress in Section 1306 of the National Flood Insurance Act of 1968, as amended (Pub.L. 90-448):

The opponents of the rate increase also argued that V-zone maps need to be updated, and that, until such updating is made and inaccuracies corrected, the rate increase is inappropriate. We recognize that flood maps need to be updated periodically—especially those containing erosion-prone areas where the flood hazard is increasing. That is why we are committed to a multi-million dollar map modernization effort for this fiscal year and beyond; however, to delay needed rate adjustments for a national program on the basis of specific disputed maps or studies would be an overreaction. There are procedures in place for restudying and remapping flood-prone areas; we also have regulatory procedures in place for appealing flood elevations derived from our studies and for correcting or amending published maps by letter. We will refer the expressions of concern about our V-zone maps in general, as well as the specific examples of Alaska's V-zone maps, for consideration and appropriate action within the Federal Insurance and Mitigation Administration.

The two opponents of the rule also pointed out that the 30-day comment period fell within the holiday season, and they asked us to consider an extension beyond January 2, 2002. We contacted the Association of State Floodplain Managers to let them know that, while we will not extend the comment period, we would wait until January 14, 2002—an additional two weeks—to assure them that we would consider any comments that may have been in transit at the close of the comment period. We also pointed out that the proposed rule also offered the public the options to submit comments by email and facsimile. The FEMA Rules Docket Clerk reported that no additional comments were received between January 2, 2002—the official end of the comment period—and January 14, 2002, the last day we would accept any outstanding comments or comments that may have been in the mail at the end of the comment period. In line with the Association's suggestion during that telephone conversation, we will do our best to ensure that any future proposed rate increase will be published well before the holiday season to avoid any potential inconvenience to the public or interested stakeholders.

Under section 102(2) (C) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4317 et seq. , the implementing regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508, and FEMA's regulations on Environmental Considerations, 44 CFR part 10, we conducted an environmental assessment of this rule. The assessment concludes that there will be no significant impact on the human environment as a result of the issuance of this final rule, and no Environmental Impact Statement will be prepared. Copies of the environmental assessment and Finding of No Significant Impact are on file for inspection through the Rules Docket Clerk, Federal Emergency Management Agency, room 840, 500 C St. SW., Washington, DC 20472.

We have prepared and reviewed this rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive 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.

For the reasons that follow we have concluded that the rule is neither an economically significant nor a significant regulatory action under the Executive Order. The rule would result in a modest increase in premiums for V-zone, pre-FIRM buildings and their contents. The adjustment in premiums rates will increase by slightly less than $3 million the amount of premium collected and deposited in the National Flood Insurance Fund each year. It will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, the insurance sector, competition, or other sectors of the economy. It will create no serious inconsistency or otherwise interfere with an action taken or planned by another agency. It will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Nor does it raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Office of Management and Budget has not reviewed this rule under the provisions of Executive Order 12866.

This rule does not contain a collection of information and is therefore not subject to the provisions of the Paperwork Reduction Act.

Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under E.O.13132 and have determined that the rule does not have federalism implications as defined by the Executive Order. The rule would adjust the premiums for pre-FIRM buildings in V-zone areas. The rule in no way that we foresee affects the distribution of power and responsibilities among the various levels of government or limits the policymaking discretion of the States.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-249, adopted January 30, 2002, and released February 8, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445-12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 red king crab bycatch allowance specified for Zone 1 of the BSAI trawl rock sole/flathead sole/”other flatfish” fishery category, which is defined at § 679.21 (e)(3)(iv)(B)(2), is 59,782 animals (67 FR 956, January 8, 2002).

In accordance with § 679.21 (e)(7)(ii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 bycatch allowance of red king crab specified for the trawl rock sole/flathead sole/”other flatfish” fishery in Zone 1 of the BSAI has been reached. Consequently, the Regional Administrator is closing directed fishing for rock sole/flathead sole/”other flatfish” by vessels using trawl gear in Zone 1 of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20 (e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid exceeding the red king crab bycatch allowance for the trawl rock sole/flathead sole/”other flatfish” fishery category in Zone 1 of the BSAI constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553 (b)(3)(B) and 50 CFR 679.20 (b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid exceeding the red king crab bycatch allowance for the trawl rock sole/flathead sole/”other flatfish” fishery category in Zone 1 of the BSAI constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.