What events have caused this AD? Reports of occurrences on Socata Model TBM 700 airplanes where a screw of a flap attachment fitting was found partly unscrewed and another was missing caused us to issue AD 2001-05-03, Amendment 39-12139 (66 FR 14308, March 12, 2001). The occurrences were the result of flap vibration. AD 2001-05-03 requires the following on Socata Model TBM 700 airplanes:

Accomplishment of these actions is required in accordance with Socata Mandatory Service Bulletin SB 70-087 57, Amendment 1, dated November 2000, or Socata Mandatory Service Bulletin SB 70-087, dated September 2000.

What has happened since AD 2001-05-03 to initiate this action? The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified FAA of the need to change AD 2001-05-03. The DGAC reports the procedures in the original issue of Socata Mandatory Service Bulletin SB 70-087, dated September, 2000, do not correct the unsafe condition. The DGAC indicates that reference to this service information should be removed from the AD. In addition, the DGAC is requiring the barrel nut be inspected for correct installation, with corrective action as necessary, on certain Socata Model TBM 700 airplanes registered in France.

What is the potential impact if FAA took no action? This condition, if not corrected, could result in the flap attaching bolts/screws becoming loose and separating from the airplane, which could cause rough or irregular control. Such rough or irregular control could lead to the loss of control of the airplane.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Socata Model TBM 700 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on February 11, 2002 (67 FR 6207). The NPRM proposed to supersede AD 2001-05-03 with a new AD that would require you to:

The NPRM also proposed to remove compliance in accordance with the procedures in Socata Mandatory Service Bulletin SB 70-087 57, dated September 2000.

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

What is FAA's final determination on this issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

How many airplanes does this AD impact? We estimate that this AD affects 75 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes?

We estimate the following costs to accomplish the modifications:

The only difference between this AD and AD 2001-05-03 is the addition of the inspection of the flap carriage attachment bolts, screws, and barrel nut. The FAA has determined that the cost of this inspection is minimal and does not increase the cost impact over that already required by AD 2001-05-03.

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

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

Currently, the Grant and Cooperative Agreement Handbook limits the incremental funding of grants. In spite of these restrictions, numerous incremental funding actions are being issued against grants. The high number of actions creates a workload burden for finance and procurement personnel in the Agency. This final rule further restricts the number of grants that can be incrementally funded by revising the dollar threshold that a grant must meet in order for it to be incrementally funded. An anticipated annual funding threshold of at least $100,000 is now specified in order for a grant to be incrementally funded. It also establishes a minimum dollar threshold of $25,000 that certain incremental funding and funding deobligation actions must meet.

Currently, section 1260.70 of the Grant and Cooperative Agreement Handbook states that NASA Centers will delegate both property administration and closeout of grants and cooperative agreements to ONR. Section 1260.77 discusses ONR tasks within the NASA closeout procedures, including certification that all required reports have been received and approved by the NASA technical officer. Both NASA and ONR were obtaining certifications. As a result, Grant Information Circular (GIC) 01-02 was issued on August 2, 2001. GIC 01-02 changed NASA's closeout policy by eliminating that specific closeout function from ONR's responsibilities. With the issuance of GIC 01-02, NASA Centers have started the process of bringing in-house the closeout function for grants and cooperative agreements. Eliminating the possibility of Centers delegating the closeout function to ONR assures that the duplication of effort (NASA and ONR) will end.

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because the changes primarily affect internal procedures which will merely result in fewer, but larger dollar value, funding actions on grants.

The Paperwork Reduction Act does not apply because this rule does not impose any new recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et. seq.

Alpharma, Inc., One Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, filed NADA 141-154 that provides for use of BMD (10, 25, 30, 40, 50, 60, or 75 grams per pound (g/lb) BMD) and ROBENZ (30 g/lb robenidine hydrochloride) Type A medicated articles to make two-way combination Type C medicated feeds containing 30 g/ton robenidine hydrochloride and 50 or 100 to 200 g/ton BMD for use in broiler and fryer chickens.

The combination Type C medicated feeds containing 50 g/ton BMD are used for prevention of coccidiosis caused by Eimeria tenella , E. necatrix , E. acervulina , E. brunetti , E. mivati , and E. maxima , and as an aid in the prevention of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin. The combination Type C medicated feeds containing 100 to 200 g/ton BMD are used for prevention of coccidiosis caused E. tenella , E. necatrix , E. acervulina , E. brunetti , E. mivati , and E. maxima , and as an aid in the control of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin. NADA 141-154 is approved as of February 11, 2002, and the regulations are amended in 21 CFR 558.515 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)(2) 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.

Authority for the Visa Waiver Program is contained in section 217 of the Immigration and Nationality Act, added initially by section 313 of the Immigrant Reform and Control Act of 1986 (IRCA). Until the enactment of the Visa Waiver Permanent Program Act (VWPPA), Public Law 106-369, on October 30, 2000, the VWP was a pilot program, known as the Visa Waiver Pilot Program (VWPP). Under the original provisions of the VWPP, the Attorney General acted jointly with the Secretary of State to determine which countries would be designated to have their nationals participate in the VWP. However, prior to the enactment of the VWPPA, Public Law 104-208 amended the statutory language to permit the Attorney General, after consultation with the Secretary of State, to make that determination. In addition, among the other changes made to the VWP by the VWPPA was the addition of a requirement that aliens denied admission into the United States under the VWP must obtain a visa prior to again seeking admission. The Department previously has promulgated regulations regarding the VWP at 22 CFR 41.2(l).

Effective February 21, 2002, the Attorney General, after consultation with the Secretary of State, terminated Argentina as a country designated to participate in the Visa Waiver Program (VWP). Under the Department's existing regulation the removal of Argentina would necessitate an amendment by the Department to its list of VWP countries found at 22 CFR 41.2(l)(2). However, in view of the fact that final authority for designating countries to participate in the VWP now rests with the Attorney General, the Department is taking this opportunity to eliminate the list of designated countries entirely from its regulation and is replacing it with a cross reference to the authoritative list contained in the VWP regulation of the Department of Justice (INS) found at 8 CFR 217.2(a). Further, the Department is changing the name of the program used in its regulation to the Visa Waiver Program in order to reflect the program's permanent status per the VWPPA. Finally, the Department is also adding a new paragraph 2 to the regulation to require consular officers to accept and adjudicate a properly filed visa application from a national of a program country who has been denied admission under the Visa Waiver Program by virtue of an INA 212(a) inadmissibility. Pursuant to the VWPPA, no other means of administrative or judicial review of a denial is permitted.

The Department's implementation of this regulation as a final rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). Publication of this regulation as a final rule will expedite implementation of Public Laws 106-369 and 104-208, both already in effect. The change of the name of the program and the removal of the list of countries from the current regulation serve only to conform the existing regulation to the relevant statutes without any administrative interpretation or additional burden being placed on the public. Likewise, the application requirement for persons refused admission simply informs the public of a new statutory requirement, placing it in the context of the relevant Department regulation. In view of these circumstances, the Department does not believe that a solicitation for comments would serve any useful purpose.

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 $100 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 export 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. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

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 warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or record-keeping requirements. The information collection requirement (Form DS-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act as OMB control number 1405-0018.

Sections 163(e) and 1271 through 1275 of the Internal Revenue Code (Code) provide rules for the treatment of debt instruments with original issue discount (OID). Section 1275(a)(1)(A) defines the term debt instrument to include a bond, debenture, note, or certificate or other evidence of indebtedness. Sections 1275(a)(1)(B)(i) and (ii), however, exclude certain annuity contracts from the definition of a debt instrument. This document contains rules concerning the exception for annuities described in section 1275(a)(1)(B)(ii). A notice of proposed rulemaking (REG-125237-00, 2001-12 I.R.B. 919) was published in the Federal Register (66 FR 2852) on January 12, 2001. One individual commented anonymously on the proposed regulations. The individual primarily expressed concern that the proposed guidance should not limit the investment options of U.S. investors. No public hearing was requested or held. The proposed regulations are adopted as proposed.

In general, the OID provisions apply to issuers and holders of debt instruments. The term debt instrument generally means any instrument or contractual arrangement that constitutes indebtedness under general principles of income tax law. See section 1275(a)(1)(A) and § 1.1275-1(d) of the Income Tax Regulations.

If a contract is a debt instrument with OID, section 1272 generally requires the holder of the contract to include OID in income currently on a constant yield basis, regardless of the holder's overall method of accounting. By contrast, the holder of an annuity contract to which section 72 applies generally is allowed to defer recognizing economically earned income until distributions are made on the contract.

Section 1275(a)(1)(B) excepts two types of annuity contracts from the definition of a debt instrument. First, section 1275(a)(1)(B)(i) excepts an annuity contract to which section 72 applies if the contract “depends (in whole or in substantial part) on the life expectancy of 1 or more individuals.” Second, section 1275(a)(1)(B)(ii) excepts an annuity contract to which section 72 applies under certain circumstances if the contract “is issued by an insurance company subject to tax under subchapter L (or by an entity described in section 501(c) and exempt from tax under section 501(a) which would be subject to tax under subchapter L were it not so exempt). . . .”

The regulations provide that an annuity contract issued by a foreign insurance company is treated under section 1275(a)(1)(B)(ii) as issued by an insurance company subject to tax under subchapter L if the insurance company is subject to tax under subchapter L with respect to income earned on the annuity contract. The IRS and Treasury conclude that this is the most appropriate application of the language of section 1275(a)(1)(B)(ii) and is consistent with the use of that phrase elsewhere in the Code and regulations. See, e.g., sections 953(e)(3)(C) and 1297(b)(2)(B); § 1.848-2(h).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Patrick E. White, Office of the Associate Chief Counsel (Financial Institutions & Products). However, other personnel from the IRS and Treasury Department participated in their development.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the May 18, 1982 Federal Register (47 FR 21404). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.13, 917.15, 917.16, and 917.17.

By letter dated January 25, 2001 (Administrative Record No. KY-1502), the Kentucky Department of Surface Mining Reclamation and Enforcement sent us an amendment to the Kentucky program. In its letter, Kentucky noted that on December 22, 1999, we suspended and modified portions of 30 CFR 784.20 and 30 CFR 817.121(c)(4)(i) through (iv) pursuant to an order of the United States Court of Appeals for the District of Columbia Circuit. Kentucky proposed to amend its rules in the same manner that we modified our regulations. The amendment, at Title 405 of the Kentucky Administrative Regulations (KAR) Chapter 18:210, deleted the provision that required presubsidence surveys of structures at Section 1(4) and the rebuttable presumption of causation of subsidence damage at Section 3(4).

Kentucky also submitted changes to Section 2(2) of 405 KAR 18:210, deleting references to the presubsidence survey of structures and adding a provision allowing property owners to waive the 30-day mining moratorium following the emergency notice. With the exception of the deletion of the references to presubsidence structural surveys, the changes to Section 2(2) do not correspond to any federal regulatory changes.

We announced receipt of the proposed amendment in the March 5, 2001, Federal Register (66 FR 13275). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. KY-1519). The public comment period ended on April 4, 2001.

By letter dated June 8, 2001 (Administrative Record No. KY-1513), Kentucky submitted the final version of the proposed amendment.

We reopened the public comment period in the August 15, 2001, Federal Register (66 FR 42815) and provided an opportunity for a public hearing or meeting on the adequacy of the revised amendment. (Administrative Record No. KY-1515). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on August 30, 2001. We received comments from one industry group, one Federal agency, and two private citizens.

The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-486, 106 Stat. 2776 (1992) (hereinafter, The Energy Policy Act or EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends SMCRA, 30 U.S.C. 1201 et seq. Section 2504 of EPAct added a new section 720 to SMCRA. Section 720(a)(1) requires that all underground coal-mining operations conducted after October 24, 1992, promptly repair or compensate for material damage to non-commercial buildings and occupied residential dwellings and related structures as a result of subsidence due to underground coal mining operations. Repair of damage includes rehabilitation, restoration, or replacement of the structures identified by section 720(a)(1), and compensation must be provided to the owners in the full amount of the diminution in value resulting from the subsidence. Section 720(a)(2) requires prompt replacement of certain identified water supplies, which have been adversely affected by underground coal mining operations. Under section 720(b), the Secretary of the Interior was required to promulgate final regulations to implement the provisions of section 720(a).

On September 24, 1993 (58 FR 50174), OSM published a proposed rule to amend the regulations applicable to underground coal mining and control of subsidence-caused damage to lands and structures through the adoption of a number of permitting requirements and performance standards. We adopted final regulations on March 31, 1995 (60 FR 16722).

The rules were challenged by the National Mining Association in the District Court for the District of Columbia and in the U.S. Court of Appeals for the District of Columbia Circuit. On April 27, 1999, the U.S. Court of Appeals issued a decision vacating certain portions of the regulatory provisions of the subsidence regulations. See National Mining Association v. Babbitt, 173 F.3d 906 (1999). We suspended those regulatory provisions that are inconsistent with the rationale provided in the U.S. Court of Appeals' decision. The following Federal provisions were suspended.

This regulation provided that if damage to any non-commercial building or occupied residential dwelling or structures related thereto occurred as a result of earth movement within an area determined by projecting a specific angle of draw from the outer-most boundary of any underground mine workings to the surface of the land, a rebuttable presumption would exist that the permittee caused the damage. The presumption typically would have applied to a 30-degree angle of draw. Once the presumption was triggered, the burden of going forward shifted to the mine operator to offer evidence that the damage was attributable to another cause. The purpose of this regulatory provision was to set out a procedure under which damage occurring within a specific area would be subject to a rebuttable presumption that subsidence from underground mining was the cause of any surface damage to non-commercial buildings or occupied residential dwellings and related structures.

The Court of Appeals vacated, in its entirety, this rule that established an angle of draw and that created a rebuttable presumption that damage to EPAct protected structures within an area defined by an “angle of draw” was in fact caused by the underground mining operation. 173 F.3d at 913.

In reviewing the regulation, the Court rejected the Secretary's contention that the angle of draw concept was reasonably based on technical and scientific assessments and that it logically connected the surface area that could be damaged from earth movement to the underground mining operation. The angle of draw provided the basis for establishing the surface area within which the rebuttable presumption would apply. The Secretary had explained that the rebuttable presumption merely shifted the burden of document production to the operator in evaluating whether the damage was actually caused by the underground mining operation within the surface area defined by the angle of draw. The Court nevertheless held that the angle of draw was irrationally broad and that the scientific facts presented did not support the logical inference that damage to the surface area would be caused by earth movement from underground mining within the area.

Based on the conclusion that there was no scientific or technical basis provided for establishing a rational connection between the angle of draw and surface area damage, the Court further concluded that the rebuttable presumption failed. In reviewing the rebuttable presumption requirement, the Court held “an evidentiary presumption is ‘only permissible if there is sound and rational connection between the proved and inferred facts, and when proof of one fact renders the existence of another fact so probable that it is sensible and timesaving to assume the truth of [the inferred] fact * * * until the adversary disproves it.’ ” That is to say, for the presumption to be permissible, the facts would have to demonstrate that the earth movement from the underground mining operation “more likely than not” caused the damage at the surface. See National Mining Association, 173 F.3d at 906-910. In compliance with the Court of Appeals' decision of April 27, 1999, we suspended 30 CFR 817.121(c)(4)(i) through (iv).

Paragraph (v) within this section applies generally to the types of information that must be considered in determining the cause of damage to an EPAct protected structure and is not limited to or expanded by the area defined by the angle of draw. Therefore, paragraph (v) remains in force.

This regulatory provision required, unless the owner denied the applicant access for such purposes, a survey, which identified certain features. First, the survey had to identify the condition of all non-commercial buildings or occupied residential dwellings and related structures, which were within the area, encompassed by the applicable angle of draw and which might sustain material damage, or whose reasonably foreseeable use might be diminished, as a result of mine subsidence. Second, the survey had to identify the quantity and quality of all drinking, domestic, and residential water supplies within the proposed permit area and adjacent area that could be contaminated, diminished, or interrupted by subsidence. In addition, the applicant was required to notify the owner in writing that denial of access would remove the rebuttable presumption that subsidence from the operation caused any post mining damage to protected structures that occurred within the surface area that corresponded to the angle of draw for the operation. (See discussion of angle of draw above). This regulatory provision was challenged insofar as it required a specific structural condition survey of all EPAct protected structures. The Court of Appeals vacated the specific structural condition survey regulatory requirement in its decision on April 27, 1999. In reviewing the Secretary's requirement, the Court clearly upheld the Secretary's authority to require a pre-subsidence structural condition survey of all EPAct protected structures. The Court accepted the Secretary's explanation that this specific structural condition survey was necessary, among other requirements, in order to determine whether a subsidence control plan would be required for the mining operation. However, because of the Court's ruling on the “angle of draw” regulation discussed above, it vacated the requirement for a specific structural condition survey because it was tied directly to the area defined by the “angle of draw.”

In compliance with the Court of Appeals” decision, we suspended that portion of 30 CFR 784.20(a)(3) which required a specific structural condition survey of all EPAct protected structures. The remainder of this section continues in force to the extent that it applies to the EPAct protected water supplies survey and any technical assessments or engineering evaluations necessarily related thereto.

Following are the findings we made concerning Kentucky's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As discussed below, we are approving the amendment.

Section 1(4)(a) of 405 KAR 18:210 requires presubsidence surveys of the specific structural conditions of protected structures within the projected angle of draw. Section 1(4)(b) provides for filing of written objections to the survey by property owners. Section 1(4)(c) prohibits mining within 1,500 feet horizontally of a structure for which a survey is required, unless the permittee submits the survey or demonstrates that the property owner refused access to the site for purposes of conducting the survey. Section 1(4)(d) allows the permittee to request an alternative to the temporary 1,500-foot buffer zone, based upon the angle of draw.

Paragraph (a) of Section 1(4) is substantively identical to the suspended portion of the Federal regulations at 30 CFR 784.20(a)(3). Paragraphs (b), (c) and (d) of Section 1(4) have no direct Federal counterparts. However, they relate only to the presubsidence structural survey requirement of paragraph (a). Because these State regulations are either substantively identical to or related only to the suspended portion of the Federal regulations at 30 CFR 784.20(a)(3), we find that their deletion will not render the Kentucky program inconsistent with SMCRA or the Federal regulations. Therefore, the deletions are approved.

Section 3(4) of 405 KAR 18:210 establishes a rebuttable presumption that damage to protected structures resulting from earth movement within the projected angle of draw was caused by the permittee. This provision is substantively identical to the suspended Federal regulations at 30 CFR 817.121(c)(4)(i) through (iv). Therefore, we find that its deletion will not render the Kentucky program inconsistent with SMCRA or the Federal regulations. We are approving the deletion.

Kentucky also proposes to amend 405 KAR 18:210, Section 2(2), which requires notice to surface owners before mining beneath their property. Section 2(1) requires the permittee to notify, in writing, all residents and occupants of surface properties and structures within the area above underground workings that mining will occur beneath their property or structures. The notification must be by mail, and must be sent to the owners or occupants at least 90 days prior to mining beneath the property or structures. Section 2(2) provides an exception to the minimum notification time in Section 2(1) if “subsequent emergencies or other unforeseen conditions in underground mining necessitate mining beneath such property or residence sooner than ninety (90) days after such notice.” If an emergency or other unforeseen condition exists, the State rule requires an additional written notice to the owner or resident that mining will occur. It also provides that “in no case shall mining be conducted beneath the property or residence sooner than thirty (30) days after such additional notice is given.”

Kentucky proposes to amend Section 2(2) to allow the property owner to waive the 30-day moratorium on mining. The waiver must be expressly given, in writing, and “shall be granted after the initial notice required under subsection (1) of this section has been given, and shall be separate from any other waiver, lease, deed, easement, agreement, or other conveyance of property or rights.” Kentucky has stated that both the initial notice under Section 2(1) and subsequent notice under Sections 2(2) are not waivable. Rather, the property owner may waive only the 30-day mining moratorium that commences after the subsequent notice. (See April 11, 2001, Statement of Consideration, Administrative Record No. KY-1513).

The Federal regulations at 30 CFR 817.122 require underground mine operators to provide written notice by mail, at least 6 months prior to mining, to all owners and occupants of surface property and structures above underground workings. The regulatory authority may, however, approve a notice period of less than 6 months after considering whether the chosen notice period is sufficient to “allow surface owners to take steps to protect their property.” (48 FR 24638, 24647, June 1, 1983).

Because Kentucky does not propose to allow waiver of either the initial or subsequent, i.e., “emergency” notice, a property owner will have at least 30 days warning, if he wants it, of the impending underground mining. As such, the owner will have an opportunity, if he so desires, to take steps necessary to protect that property. Therefore, the allowance of a waiver, so long as it is expressly given in writing, does not frustrate the purpose of this regulation, which is to provide a landowner with sufficient time to protect his property if he wishes to do so. For this reason, the proposed amendment does not render Section 2(2) inconsistent with the Federal regulations at 30 CFR 817.122, and it is therefore approved. However, for the reasons discussed below in our responses to the comments of the National Citizens' Coal Law Project, we are approving the waiver provision only to the extent that, where more than one entity owns the land or mineral resources, all such owners must sign express waivers of the 30-day period before the regulatory authority may grant the waiver.

We asked for public comments on the amendment. One public comment was received from National Citizen's Coal Law Project in a letter dated August 30, 2001 (Administrative Record No. KY-1517). The commenter stated that the regulation, at 405 KAR 18:210, Section 2(2), is inconsistent with and less effective than the corresponding Federal counterpart requirement at 30 CFR 817.122 because it provides for a 30-day notice period prior to mining in some instances, whereas the federal regulation requires at least 6 months notice. Specifically, the commenter charged that “Kentucky's regulatory approach has been eroding the timeframe set by Congress from six months to three months, to one month, and now proposes to eliminate entirely the waiting period.” Therefore, the commenter stated that the amendment must be disapproved.

We disagree. First, we previously approved the 30-day emergency notice period in our original approval of the Kentucky program (47 FR at 21412, Finding 13.21, in which we approved 405 KAR 18:210E, Section 2). Second, Kentucky does not propose to eliminate the notice period entirely, as the commenter alleges, unless the property owner waives his right to use that period to take steps necessary to protect his property from mining. Therefore, as explained in the finding above, the purpose of the regulation is still served.

The commenter also objected to the allowance of a waiver of the 30-day notice period prior to mining. Specifically, the commenter stated the following: (1) Where the landowner who resides in the dwelling refuses to sign a waiver or lease but a non-resident co-tenant signs such a lease and a waiver of the 30-day notice, this regulation could allow immediate undermining despite the objection of the surface owner; (2) The existence of past fraud in submission of waivers also demands that a time period be allowed to assure that undermining does not occur based on a fraudulent “waiver” of the 30-day period and; (3) Once undermined, the aggrieved party who opposed mining cannot be made “whole.” Their property and interests are irreparably altered. Allowing the waiver of any time frame based on an “owner” waiver, the commenter indicated, invites more mischief and more hardship for co-tenants who are often subject to coal companies purchasing or leasing a minor fractional interest and then mining the property.

We agree that the commenter's concerns have some historical validity. Therefore, our approval of this waiver provision must not be construed to allow the outcomes feared by the commenter. In other words, as noted in the finding above, we are approving the waiver provision only to the extent that, where more than one entity owns the land or mineral resources, all such owners must sign express waivers of the 30-day period before the regulatory authority may grant the waiver. Moreover, we believe that safeguards in the proposal itself may assuage the commenter's concern about fraudulent waivers. For example, the regulation provides that the waiver may be granted only after the permittee has made the initial notice as required, and the waiver must be separate from any other waiver, lease, deed, easement, agreement, or other conveyance of property or rights. These restrictions will help insure that the owner is aware, at the time he grants the waiver, of the current circumstances and the notice to which he is entitled. Moreover, because the regulatory authority will receive copies of the waivers, it can verify the names of the waiving property owners by checking them against the names of surface and mineral owners provided in the permit application. While these safeguards do not guarantee that a fraudulent waiver will never be accepted, such a guarantee simply does not exist. Indeed, regulatory authorities must rely to some degree upon the veracity of the permittee in other instances, such as the acceptance of information provided in a permit application itself. Finally, we note again that the permittee must give the initial 90-day notice and an additional notice as required when it wishes to undermine a property sooner than 90 days after the initial notice. The owner cannot waive the permittee's obligation to provide these notices.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-1515). The U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded in a letter dated August 27, 2001 (Administrative Record No. KY-1516). The commenter indicated that the proposed changes should have no foreseeable impact concerning MSHA.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). This amendment does not pertain to air or water quality standards. Therefore, we did not ask the EPA for concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. KY-1515). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 22, 2001, we requested comments on Kentucky's amendment (Administrative Record No. KY-1515), but neither entity responded to our request.

Based on the above findings, we approve the Kentucky amendment, as revised on June 8, 2001.

To implement this decision we are amending the Federal regulations at 30 CFR part 917, which codifies decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503 of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

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

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

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

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

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

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

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (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 this Executive order.

It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

It has been determined that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.

District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs of the waters within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. Security zones limit access to vessels, ports, or waterfront facilities to prevent injury or damage. Safety and security zones may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Timely publication of these regulations in the Federal Register is often precluded when a regulation responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, informed of these regulations through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the regulation. Because Federal Register publication was not possible before the beginning of the effective period, mariners were personally notified of the contents of these special local regulations, security zones, or safety zones by Coast Guard officials on-scene prior to the enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary security zones and safety zones. Permanent regulations are not included in this list because they are published in their entirety in the Federal Register . Temporary regulations may also be published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The safety zones and security zones listed in this notice have been exempted from review under Executive Order 12866 because of their emergency nature, or limited scope and temporary effectiveness.

The following regulations were placed in effect temporarily during the period from July 1, 2001 through March 31, 2002, unless otherwise indicated. This notice also includes regulations that were not received in time to be included on the quarterly notice for the third and fourth quarter of 2001.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM, and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM and delaying its effective date would be contrary to public interest since immediate action is needed to protect vessels and mariners from the hazards associated with this event. The Coast Guard did not receive notice of the Port Neches Riverfest in time to publish a NPRM or to have the temporary final rule, published in the Federal Register 30 days prior to the event.

The Port Neches Chamber of Commerce Riverfest will include a fireworks display as well as a series of boat races on the Neches River, adjacent to Port Neches Park, Port Neches, Texas. Safety zones will be established during the fireworks display and during the boat races to ensure the safety of the participants, spectators, and other vessels.

The fireworks safety zone will encompass all waters of the Neches River, shore to shore, adjacent to Port Neches Park, between the northern boundary at 30°00′00″ N and the southern boundary at 29°59′42″ N. These coordinates are based upon [NAD 83]. This safety zone will be enforced from 8 p.m. to 10 p.m. on May 11, 2002.

The safety zone for the boat races will encompass all waters of the Neches River, shore to shore, adjacent to Port Neches Park in Port Neches, Texas, between the northern boundary at 30°00′12″ N and the southern boundary at 29°59′36″ N. These coordinates are based upon [NAD 83]. This safety zone will be enforced from 8 a.m. to 6 p.m. on May 12, 2002.

Entry into these zones by anyone other than event participants is prohibited, unless authorized by the Captain of the Port, Port Arthur or his designated representative.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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 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).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies procedures of DOT is unnecessary. The waterway will be closed briefly from 8 p.m to 10 p.m. on May 11, 2002 for the fireworks display. On May 12, 2002, there will be two breaks during the boat races. During these breaks, the waterway will be cleared and traffic will be allowed to pass through the zone as directed by the Coast Guard patrol commander. The break periods will begin at approximately 11 a.m. and 2:45 p.m. and will last approximately one hour each. Notifications of the safety zones and break periods will be made to the marine community by broadcast notices to mariners and the event sponsors. The impacts on routine navigation are expected to be minimal.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would 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.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit that portion of the Neches River adjacent to Port Neches Park, Port Neches, Texas, from 8 p.m. to 10 p.m. on May 11, 2002 and from 8 a.m. to 6 p.m. on May 12, 2002.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (1) The safety zone for the fireworks display will only be in effect for a short period of time, (2) there will be two breaks during the boat races. During these breaks the waterway will be cleared and traffic will be allowed to pass through the zone as directed by the Coast Guard patrol commander, and (3) notifications of the safety zones and break periods will be made to the marine community by broadcast notices to mariners and the event sponsors.

If you are a small business entity and are significantly affected by this regulation please contact LTJG Mike Kicklighter, Marine Safety Office Port Arthur, at (409) 723-6500.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations 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 rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, so we discuss the effects of this rule elsewhere in this preamble.

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

This 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 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 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 rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available for inspection or copying where indicated under ADDRESSES.

On March 20, 2002, we published a notice of proposed rulemaking (NPRM) entitled Security Zone; Potomac River, Washington Channel, Washington, DC in the Federal Register (67 FR 12947). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Immediate action is needed to protect dignitaries taking part in the high-level military ceremony from potential threats posed by waterborne acts of sabotage or other subversive acts. For the concerns noted, it is in the public interest to have this regulation in effect during the event.

The Coast Guard will conduct a Change of Command ceremony along the Potomac River at Washington, DC. A security zone is needed to protect dignitaries taking part in the high-level military ceremony from potential threats posed by waterborne acts of sabotage or other subversive acts. The purpose of the proposed regulation is to promote maritime safety and protect participants and spectators during the event. These regulations will impact the movement of all vessels operating in the specified area on the Washington Channel at Washington, DC.

No comments were received; therefore, we have made no changes to the regulatory text.

The U.S. Coast Guard Commandant's Change of Command ceremony will be held at Fort Lesley J. McNair, Washington, DC on May 30, 2002. The event will consist of a background comprised of three U.S. Coast Guard vessels anchored adjacent to Fort McNair on the confined waters of the Washington Channel, on the Potomac River. A security zone is needed from 11 a.m. through 4 p.m. on May 30, 2002 to safeguard event participants and spectators. U.S. Coast Guard patrol vessels will be provided to prevent the movement of persons and vessels in an area approximately 200 yards wide and 450 yards long within Washington Channel. Entry into this zone is prohibited unless authorized by the Captain of the Port or his or her designated representative. The Captain of the Port will notify the public of changes in the status of the zone by a Marine Safety Radio Broadcast.

This 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 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).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This temporary rule affects a limited area for approximately five hours, and will not completely close the navigable channel. Therefore, the Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would 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.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Washington Channel from 11 a.m. through 4 p.m. on May 30, 2002. The zone will only encompass a limited area. Shallow water vessel traffic not constrained by draft can pass safely around the security zone. A lack of commercial vessel traffic exists in the area during the effective period. Maritime advisories on the Change of Command ceremony have been advertised and made widely available to users of the channel and will continue until the ceremony is complete.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations 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 rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This 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 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 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 rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because of the limited duration and scope of the regulation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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, 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. The State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska that the rural preference in the State subsistence statute violated the Alaska Constitution. The Court's ruling in McDowell required the State to delete the rural preference from the subsistence statute and, therefore, negated State compliance with ANILCA. The Court stayed the effect of the decision until July 1, 1990.

As a result of the McDowell decision, 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. On June 29, 1990, the Temporary Subsistence Management Regulations for Public Lands in Alaska were published in the Federal Register (55 FR 27114-27170). On January 8, 1999, (64 FR 1276), the Departments extended jurisdiction to include waters in which there exists a Federal reserved water right. This amended rule conformed the Federal Subsistence Management Program to the Ninth Circuit's ruling in Alaska v. Babbitt.

Consistent with Subparts A, B, and C of these regulations, 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, U.S. National Park Service; the Alaska State Director, U.S. Bureau of Land Management; the Alaska Regional Director, U.S. 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, and the annual subpart D regulations.

On June 12, 2001 (66 FR 31533), the Secretaries published an Interim rule expanding the authority of the Board to delegate in-season management decisions to local field managers. This final rule responds to comments received on that Interim rule and makes changes to it as appropriate. All Board members have reviewed this rule and agree with its substance.

Alaska has been divided into ten subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council. The Regional Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Alaska public lands. The Regional Council members represent geographical, cultural, and user diversity within each region.

The Secretaries published an Interim rule (66 FR 31533) on June 12, 2001, in order to provide necessary delegation of authority to field managers to make crucial fishery management decisions during the past fishing season. At the same time, comments were solicited on the Interim rule. During their Winter Council meetings in February and March 2001, all Regional Advisory Councils supported the expansion of delegation authority found in § __.10(d)(6). We also received a total of three written comments on the Interim rule.

Two commentators supported clarification of residency requirements found in § __.6(a)(1). A number of agencies indicated that there needed to be clarification regarding the minimum age at which a person could obtain a Federal Subsistence Registration permit or Designated Harvester permit. Clarifying language has been added at § __.6(b).

Three commentators opposed the expansion of delegated authority, believing that it would remove the public process from critical management decisions. They also indicated that the decisions should remain with the Federal Subsistence Board. In developing the implementing letter that instructs field managers in the procedures to use for in-season management decisions, the Federal Subsistence Board specifically included language requiring public coordination and communication prior to in-season management decisions. During summer and fall 2001, over 30 in-season management decisions were made by field managers. All of these were accomplished with public involvement and close coordination with the Alaska Department of Fish and Game (ADFG). The delegated authority worked so well that ADFG is in the process of acquiring the same level of authority for its own field managers.

One commentator indicated opposition to the formation of any Federal local advisory committees (§ __.10(d)(4)(xii)). The Board intends to continue utilizing State local fish and game advisory committees and not to establish any Federal ones.

One commentator supported the reorganization and clarifying language relative to Special Actions (§ __.19).

One commentator recommended transmitting a copy of any Request for Reconsideration to the State for review and recommendation. This requirement has been added to § __.20(e). Another commentor recommended that the conditions for accepting a Request for Reconsideration be less open to interpretation. The standards that were placed in § __.20(d) are the same standards that the Board has been using since assuming jurisdiction for subsistence management. However, this is the first time that they have been formally published. We believe that it is in the public interest to let potential requestors know under what circumstances the Board will be accepting a Request for Reconsideration. Unfortunately, all of the criteria cannot be completely objective; there will always be some level of subjectivity.

One commentator also disagreed with a statement made in the preamble regarding economic effects. This rule by itself does not, and will not, restrict any existing sport or commercial fisheries. However, future Board actions could result in some closures to those fisheries in certain areas in order to protect the fish stocks upon which subsistence users and non-subsistence users depend.

Based on our analysis of public comments and agency concerns expressed since publication of the Interim rule (66 FR 31533) on June 12, 2001, we have made the following revisions:

Section __.6(b)—Clarified the age at which you can obtain a Federal subsistence registration permit, a Designated Harvester permit, or have someone serve as a designated harvester for you. Agencies, staff, and members of the public have expressed concern about alleged and potential abuse by individuals obtaining permits for infants;

Section __.7—Corrected an inadvertent error that removed the allowance for barter of fish and wildlife. Barter is provided for in ANILCA and had been allowed in the regulations until publication of the rule expanding jurisdiction for subsistence fisheries management (January 8, 1999, 64 FR 1276);

Section __.11(b)(1)—Removed the unintended requirement that Regional Council member recommendations could only come from nominations made by subsistence users. The Board's recommendations to the Secretaries for appointment to the Regional Councils may come from nominations or from self-applicants;

Section __11(c)(3)—Clarified that Regional Council recommendations should be supported by substantial evidence, be consistent with recognized principles of fish and wildlife conservation, and not be detrimental to the satisfaction of subsistence needs. This corresponds to the reasons under which the Board may reject a Regional Council recommendation;

Section _.14(b)—Clarified that the Board's authority includes trapping, as well as hunting and fishing;

Section __.18—Removed duplicative language;

Section __.19(c)—Revised the statement that implied that any Special Action that is not accepted would be deferred to the next regulatory cycle. Upon further consideration, a proponent may not wish to have his/her request appear in the next cycle because conditions may have changed or other information is now available warranting other action;

Section __.20—Inserted a requirement for the Board to provide a copy of any Request for Reconsideration for review and recommendation to the Alaska Department of Fish and Game;

Section __.23(a)—Included the areas of Kenai, Seward, and Homer to the list of non-rural areas. This reflects the Board's May 2001 recision of its May 2000 decision that had determined these communities to be rural; and,

Section __.23(a)—Corrected the description of one location in the Ketchikan area (Mountain Point versus Mountain Pass) and parts of Gravina Island.

Nothing in this rule is intended to change the underlying rural priority that is set out in Title VIII of ANILCA or otherwise amend the statutory basis of the Federal Subsistence Management Program. Although most sections of these regulations are not being amended, for the purpose of clarity and ease of understanding, the entire text of subparts A and B, and portions of C is being printed. The unpublished sections (portions of subpart C and Sections __.25, __.26, __.27, and __.28) relate to wildlife, fish, and shellfish regulations that are revised annually. Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text is incorporated into 36 CFR part 242 and 50 CFR part 100.

The primary purpose of the interim rulemaking action was to delegate additional authority from the Board to local officials to make conservation decisions. We published an interim rule because there was inadequate time to engage in notice-and-comment rulemaking prior to the start of the spring/summer salmon runs. Many of these runs, particularly on the Yukon and Kuskokwim Rivers, were the lowest in history last year and were expected to be very low again this past season. As such, the ability to make immediate (often within hours) decisions relative to a specific run or pulse of fish was critical in protecting the health of the population while, if at all possible, providing a subsistence opportunity for the rural residents.

National Environmental Policy Act Compliance —A Draft Environmental Impact Statement (DEIS) that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments and staff analysis and examined the environmental consequences of the four alternatives. Proposed regulations (Subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory cycle regarding subsistence hunting and fishing regulations (Subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comment received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, it was the decision of the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-Forest Service, to implement Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of an annual regulatory cycle for subsistence hunting and fishing regulations. 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.

An environmental assessment has been prepared on the expansion of Federal jurisdiction over fisheries and is available by contacting the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior with the concurrence of the Secretary of Agriculture has determined that the expansion of Federal jurisdiction does not constitute a major Federal action, significantly affecting the human environment and has, therefore, signed a Finding of No Significant Impact.

Compliance with Section 810 of ANILCA —A Section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. 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. 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 it does not appear that the program may significantly restrict subsistence uses.

During the environmental assessment process, an evaluation of the effects of this rule was also conducted in accordance with Section 810. This evaluation supports the Secretaries' determination that the final rule will not reach the “may significantly restrict” threshold for notice and hearings under ANILCA Section 810(a) for any subsistence resources or uses.

Paperwork Reduction Act —This rule 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 has been approved by OMB, Control Number 1018-0075, which expires July 31, 2003. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Currently, information 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 or fishery 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 fish or 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.

The information collected will establish whether the applicant qualifies to participate in a Federal subsistence hunt or fishery on public land in Alaska and will provide a report of harvest and location of harvest.

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 222 ARLSQ, Washington, D.C. 20240; and the Office of Management and Budget, Department of the Interior Desk Officer, 725 17th Street, NW., Washington, D.C. 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.

Clarity of the Rule Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § __.24 Customary and traditional determinations.) (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov.

Economic Effects This rule is not a significant rule subject to OMB review under Executive Order 12866. This rulemaking will impose no significant costs on small entities; this rule does not restrict any existing sport or commercial fishery on the public lands and subsistence fisheries will continue at essentially the same levels as they presently occur. 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 positive economic effect on a number of small entities, such as ammunition, snowmachine, fishing tackle, and gasoline dealers. The number of small entities affected is unknown; but, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that they will not be significant.

In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, it is estimated that 24 million pounds of fish (including 8.3 million pounds of salmon) are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound for salmon and $0.58 per pound for other fish, would equate to about $34 million in food value state-wide. We also estimate that 2 million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, would equate to about $6 million in food value state-wide.

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 Departments have determined based on the above figures that this rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. Under the Small Business Regulatory Enforcement Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations 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 this rulemaking will not impose a cost of $100 million or more in any given year on local or state governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any state or local entities or tribal governments.

The Secretaries have determined that these final regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

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 this rule is not a significant regulatory action under Executive Order 13211, affecting energy supply, distribution, or use, this action is not a significant action and no Statement of Energy Effects is required.

Drafting Information— These regulations were drafted by William Knauer under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional guidance was provided by Taylor Brelseford, Alaska State Office, Bureau of Land Management; Sandy Rabinowitch and Bob Gerhard, Alaska Regional Office, National Park Service; Greg Bos and Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Ida Hildebrand, Alaska Regional Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest Service.

On January 17, 2002, the Postal Service published, for public comment, a notice in the Federal Register (67 FR 2388), proposing to realign permissible points for mailer deposit of Standard Mail machinable parcels and Package Services machinable parcels currently required, by DMM Standard, to be entered at the Buffalo, New York, Auxiliary Service Facility (ASF) in order to be claimed at destination bulk mail center (DBMC) rates.

Mailers will now be required to enter mail, addressed for delivery within the ZIP Code range of the Buffalo ASF service area, as defined for the appropriate class of mail in DMM Exhibit E650.5.1 and Exhibit E751.1.3, at the Pittsburgh BMC to claim the DBMC rates. As part of this final rule, all machinable and nonmachinable parcels (Parcel Post, Parcel Select, and Bound Printed Matter) deposited at the Pittsburgh BMC are also required to be zoned from Pittsburgh using Postal Service zone chart 150. As an option, mailers may also deposit nonmachinable parcels for the Buffalo ASF service area ZIP Codes listed in DMM labeling list L602 at the Pittsburgh BMC, provided that these nonmachinable parcels are commingled in bedloads with the DBMC rate machinable parcels. These nonmachinable parcels would also be eligible for the DBMC rates. Otherwise, nonmachinable parcels must continue to be deposited at the Buffalo ASF in order to be eligible for the DBMC rates. Barcoded machinable parcels for the Buffalo ASF service will be eligible for the parcel barcode discount when entered at the Pittsburgh BMC. Under this final rule, entry of Standard Mail, Parcel Select, and Bound Printed Matter machinable parcels sorted to the 5-digit ZIP Codes within the Buffalo sectional center facility (SCF) service area, as defined in DMM L005, would continue to be required to be deposited at the Buffalo SCF in order to qualify for the destination sectional center facility (DSCF) rate. Standard Mail machinable parcels claimed at DSCF rates and entered at Buffalo will continue to be eligible for a parcel barcode discount.

Currently, all machinable parcels entered at the Buffalo ASF are sorted manually by the Postal Service to the first three digits of the delivery address ZIP Codes. Those parcels destined to addresses within the Buffalo ASF service are either further sorted to the Buffalo SCF or transported to SCFs in Rochester, Syracuse, Elmira, and Utica. At the SCFs, the parcels are sorted by 5-digit ZIP Code to the associated delivery offices and subsequently transported to those delivery offices.

In contrast to this manual operation in Buffalo, the Pittsburgh BMC sorts machinable parcels on parcel sorting machines (PSMs) and finalizes the parcels to 5-digit ZIP Codes in one or two passes. Parcels destined for the Buffalo ASF service area are then transported directly from the Pittsburgh BMC to the appropriate SCFs. This rule change will minimize more costly and slower manual processing and provide more direct transportation of such parcels. The Postal Service believes that this realignment of ZIP Codes for DBMC rate eligibility between between the Pittsburgh BMC and the Buffalo ASF will provide consistent customer service by eliminating at least one step in the transportation process.

This rule change will eliminate any confusion concerning the applicable standards for the deposit of DBMC machinable parcels in the affected service areas. This final rule contains the DMM standards adopted by the Postal Service after review of the comments that were submitted.

The Postal Service received written comments on the January 17 proposed rule from three mailers and one mailer association.

One commenter questioned the accuracy of the statement in the proposed rule that “current records indicate that more than three years have passed since the Buffalo ASF has received any drop shipments.”

The Postal Service acknowledges that the statement should have read “current records indicate that more than three years have passed since the Buffalo ASF has received any drop shipments of machinable parcels.”

The same commenter suggested that the exception to allow mailers to divert machinable parcels from the Buffalo ASF to the Pittsburgh BMC is the real issue to be addressed. According to this commenter, mailers not party to the exception should not be penalized.

This final rule formally designates the Pittsburgh BMC as the appropriate deposit point for machinable parcels claimed at DBMC rates destined for the Buffalo ASF service area. Moreover, the Postal Service believes that this change will ensure a fair and uniform rate application to all mailers depositing machinable parcels at the Pittsburgh BMC. Many of those mailers have been depositing machinable parcels destined for the Buffalo ASF service area and zoning and rating those parcels from the Pittsburgh BMC.

Another commenter implied that the proposed changes stem from possible mismanagement of operational resources at the Buffalo ASF, including inappropriate mail processing equipment. The commenter further states that the Postal Service is imposing increased DBMC rates on customers because of its own inadequacies. The commenter believes that the proposed changes are tantamount to a “poorly concealed rate increase.”

The changes announced in this final rule are not the result of mismanagement or inappropriate resource allocation but rather a reflection of effective cost management for mailers and the Postal Service. In addition, the changes in this final rule are not an attempt to increase rates by use of a technical regulatory change. Part of this management is the long-term strategy of realigning the Postal Service processing and transportation networks as a viable means to raise productivity, stabilize costs, and minimize postage rate increases.

The diversion to the Pittsburgh BMC of machinable parcels destined for the Buffalo ASF service area is not the outcome of recent redirection of that volume by the Buffalo ASF. Almost from the inception of the DBMC entry rates on February 24, 1991, the majority of dropship parcel mailers have been depositing at the Pittsburgh BMC machinable parcels and some nonmachinable parcels destined for the Buffalo ASF. In fact, about 31 percent of the current parcel volume processed at the Pittsburgh BMC is destined for the Buffalo ASF. This large percentage is not surprising because western New York is not an originating area for large parcel shippers. As a result, the majority of parcel shippers who have parcels destined for the Buffalo ASF are also likely to have parcels destined for the Pittsburgh BMC service area.

Based on the expected additional costs that the commenters or their clients may incur, all four commenters objected to the realignment, particularly the requirement to zone mail entered at the Pittsburgh BMC using the Pittsburgh zone chart instead of the Buffalo zone chart. Alternatives suggested included extending the effective date, either to the end of calendar year 2002, or the beginning of calendar year 2003, and developing an optional sort rate for packages presorted and containerized by 3-digit ZIP Codes prefixes and entered at the Buffalo ASF for cross-docking to SCFs. The comment suggesting the development of an optional sort rate for packages presorted and containized by 3-digit ZIP Code prefixes and entered at the Buffalo ASF for cross-docking to SCFs is beyond the scope of this rulemaking and is not addressed in this final rule.

The Postal Service is indeed concerned about any financial burden that this final rule will place on parcel shippers. As a consequences, the Postal Service will delay required implementation of these changes to January 5, 2003. This delay should reduce any financial impact on mailers this year and, at the same time provide sufficient time to plan for significant or individual changes that would affect their current operations.

One commenter noted that zoning Buffalo Parcel Select from Pittsburgh will raise customer rates by $0.89 per parcel. This commenter implied that DBMC rates as a whole are going up faster than DSCF and DDU rates frequently used by large package consolidators, leading the commenter to believe that the intent of the Postal Service is to drive customers to competitors.

On one hand, the Postal Service does acknowledge that there will be some adjustments in postage paid because of the requirement that mailers zone machinable parcels destined for the Buffalo ASF from the Pittsburgh BMC. Not all increased costs, however, are attributed solely to postage. Depending on the size, weight, and distance of the parcel as well as associated transportation costs, mailers can benefit from the changes in this final rule because they are permitted to use one facility rather than two for the deposit of their mail for the same geographic area. In essence, they can benefit from reduced transportation costs.

Although both the DDU and the DSCF rates for Parcel Select will have increases effective with the June 30, 2001, implementation of R2001-1 as announced in the Federal Register on April 16, 2001, adjustments were made to the DBMC rates to reflect increased postal costs for handling. The Postal Service introduced a separate 1-pound Parcel Post rate to mitigate increases in rates for lighter weight parcels. Increases in the DBMC rates are not part of any strategy to drive customers to competitors but to provide universal service within the guidelines of the standards that govern the Postal Service. Furthermore, customers who use package consolidators actually pay those consolidators higher rates for these services than the published DDU and DSCF rates.

After full consideration of the comments received the Postal Service believes it appropriate to adopt, without revisions, the proposed changes in eligibility requirements.

The Domestic Mail Manual is revised as follows: These changes are incorporated by reference in the Code of Federal Regulations. See 39 CFR part 111.

On July 17, 2001, the Georgia Environmental Protection Division (GAEPD) submitted to EPA a revised 1-hour ozone attainment demonstration for the Atlanta 1-hour ozone nonattainment area (Atlanta area) that replaced the attainment demonstration submitted to EPA on October 28, 1999. The new submittal contained a revised MVEB, a request for an attainment date extension to November 15, 2004, a revised PSG program and the RACM analysis. GAEPD also agreed to perform an early assessment of the Atlanta Ozone Attainment SIP and submit it to EPA by November 15, 2003.

EPA proposed to approve the attainment demonstration and to grant an attainment date extension, pursuant to EPA's “Guidance on Extension of Air Quality Attainment Dates for Downwind Transport Areas.” The extension policy applies where pollution from upwind areas interferes with the ability of a downwind area to demonstrate attainment with the 1-hour ozone standard by the dates prescribed in the CAA. As an alternative to reclassification for areas affected by transport, the extension policy provides that an area, such as Atlanta, is eligible for an attainment date extension if it can make submissions that meet certain conditions. EPA proposed that the Atlanta area met all of the required conditions.

In the alternative, EPA proposed to find that the Atlanta area failed to attain the 1-hour ozone National Ambient Air Quality Standards (NAAQS) by November 15, 1999, the date set forth in the CAA for serious nonattainment areas. If EPA had finalized this finding, the Atlanta area would be reclassified, by operation of law, as a severe nonattainment area. EPA also took comment on a proposed schedule for submittal of the SIP revisions required for severe areas should the area be reclassified.

Please see the Federal Register proposal actions published on December 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972) for further information.

In today's action EPA is finalizing its proposed determination that the Atlanta SIP has met the criteria for an attainment date extension. Therefore, EPA is extending the attainment date for the Atlanta area to November 15, 2004, to allow the reductions in transport needed for attainment to occur. Please see the Federal Register actions published on December 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972) for further information.

EPA's policy regarding an extension of the ozone attainment date for areas affected by transport was set forth in a July 16, 1998, guidance Memorandum entitled “Extension of Attainment Dates for Downwind Transport Areas” which was published in a notice of interpretation on March 25, 1999, (64 FR 12221). In it, EPA set forth its interpretation of the CAA regarding the extension of attainment dates for ozone nonattainment areas that have been classified as moderate or serious for the 1-hour ozone NAAQS, and which are downwind of areas that have interfered with the moderate and serious nonattainment areas's attainment of the ozone NAAQS by dates prescribed in the CAA. EPA stated that it will consider extending the attainment date for an area or a state that:

a. Has been identified as a downwind area affected by transport from either an upwind area in the same state with a later attainment date or an upwind area in another state that significantly contributes to downwind ozone nonattainment;

b. Has submitted an approvable attainment demonstration with any necessary, adopted local measures, and with an attainment date that shows it will attain the 1-hour NAAQS no later than the date that the emission reductions are expected from upwind areas in the final nitrogen oxide (NO X ) SIP Call and/or the statutory attainment date for upwind nonattainment areas, i.e., assuming the boundary conditions reflecting those upwind emission reductions;

c. Has adopted all applicable local measures required under the area's current ozone classification and any additional emission control measures demonstrated to be necessary to achieve timely attainment, assuming the emission reductions occur as required in the upwind areas; and

d. Has provided that it will implement all adopted measures as expeditiously as practicable, but no later than the date by which the upwind reductions needed for attainment will be achieved.

EPA has determined that the Atlanta area has satisfied the criteria for an attainment date extension as follows.

(i) The State has cited EPA's NO X SIP Call modeling and analyses documented in EPA's final NO X SIP Call notice published on October 27, 1998, (63 FR 57356) to demonstrate that the Atlanta area is affected by an upwind area in another state that significantly contributes to ozone nonattainment in the Atlanta area. In our December 16, 1999, notice (64 FR 70478) proposing approval of the initial 1-hour ozone attainment demonstration for the Atlanta area submitted on October 28, 1999, we explained how the Ozone Transport Assessment Group (OTAG) modeling which supported the NO X SIP Call and the attainment demonstration for the Atlanta area demonstrates the impacts of transport. The NO X SIP Call notice provides that emissions from sources in Alabama, Kentucky, North Carolina, South Carolina, and Tennessee significantly contribute to violations of the 1-hour ozone standard in the Atlanta area.

(ii) As explained elsewhere in this notice, the GAEPD has submitted an attainment demonstration that EPA believes is approvable and that provides for timely attainment no later than the date emission reductions are expected under the NO X SIP call. All of the local control measures relied upon in the attainment demonstration have been adopted and submitted to EPA. These measures include all serious area requirements under section 182(c) and the additional controls discussed in the December 16, 1999, proposal (64 FR 70478) and the July 10, 2001, (66 FR 35906) final rule.

(iii) The GAEPD has adopted all local measures required by section 182(c) of the CAA for the Atlanta serious nonattainment area and all other measures necessary for timely attainment. (See 59 FR 46176, 60 FR 12691, 60 FR 66150, 61 FR 3819, 62 FR 42918, 64 FR 20188). Additionally, see discussion of contingency measures discussed below.

(iv) With respect to implementation of all adopted measures as expeditiously as practicable but no later than the time upwind controls are expected, the Atlanta SIP requires that all local control measures needed for attainment be in place by May 1, 2003, or earlier. The upwind areas identified above are required to implement controls consistent with the NO X SIP Call by May 31, 2004. All of the local control measures in the Atlanta SIP will, therefore, be implemented prior to that time and EPA also finds that they will be implemented as expeditiously as possible.

EPA has determined, based on the above discussion, that the Atlanta SIP has met the criteria for an attainment date extension. Therefore, EPA is extending the attainment date for the Atlanta area to November 15, 2004, to allow the reductions in transport to occur before attainment is required. This does not affect the GAEPD's obligation to implement the remaining local measures by the dates required in the approved SIP regulations. Additional background information on EPA's attainment date extension policy can be found in the following Federal Register notices:

In the supplemental proposed rule published on December 11, 2001, EPA proposed to approve the 1-hour ozone attainment demonstration for the Atlanta area as submitted on July 17, 2001, and to extend the area's attainment date to November 15, 2004. In the alternative, EPA proposed to find that the Atlanta area failed to attain the 1-hour ozone NAAQS by November 15, 1999, and to reclassify the Atlanta area to severe.

In today's action, EPA is granting final approval to the 1-hour ozone attainment demonstration for the Atlanta area and extending the attainment date to November 15, 2004. The Atlanta area will thus retain its classification as a serious nonattainment area.

Section 172(c)(1) of the CAA requires attainment demonstration SIPs to provide for the implementation of all RACM as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology, (RACT) and to provide for the attainment of the NAAQS. EPA has previously provided guidance interpreting the RACM requirements of 172(c)(1) (see 57 FR 13498, 13560). RACM was also discussed in the supplemental proposed rule published on December 11, 2001, (see 66 FR 63972). Today, EPA is approving Georgia's RACM analysis.

The MVEB for 2004 were calculated using the revised speeds, updated registration data, updated vehicle miles traveled (VMT), and projected 2004 VMT, and the control measures identified in the 1-hour ozone attainment demonstration for the Atlanta area. The resulting budgets are 106.25 and 225.12 tons per typical summer day of VOC and NO X , respectively.

These MVEB reflect the most up-to-date mobile modeling assumptions including 2004 VMT projected from the travel demand model for the Atlanta area and July 2004 emission factors from EPA's MOBILE5b emission factor model and 1999 vehicle registration data, which were available at the time of SIP adoption. The control measures identified and modeled for mobile emissions used to establish the MVEB, along with other control measures in this plan, will result in attainment of the 1-hour ozone NAAQS by 2004.

EPA is granting final approval to the 2004 MVEB because they are based on the most recent data, they reflect reductions from the control measures included in the attainment demonstration and they are consistent with the overall attainment demonstration.

Now that EPA has approved the Atlanta attainment demonstration, all future transportation conformity determinations must be measured against the MVEB in the approved SIP. The previous adequacy determination that EPA had made with respect to the MVEB in the submitted attainment demonstration SIP will have no further force or effect in any future conformity determinations. EPA's final approval of the attainment demonstration and the MVEB contained in it is a separate action from EPA's prior adequacy determination and is based upon different analyses and standards. The adequacy determination had only found that the submitted budgets met the adequacy criteria in EPA's transportation conformity regulations, 40 CFR 93.118(e)(4). Today's approval is based on EPA's conclusions that the SIP as a whole, including the MVEB it contains, meets all applicable requirements for approval of an attainment demonstration as described throughout this notice.

In 1997, EPA published the “Voluntary Mobile Source Emission Policy” (VMEP) in order to assist states considering nonregulatory emission strategies, which are generally not effective on a mandatory basis. The VMEP policy allows states to take credit for expected emission reductions from voluntary mobile source programs, and allows states to take credit for up to 3 percent of the total emission reductions needed for attainment through the VMEP policy. Georgia is using this policy to take credit for its PSG program. The PSG promotes effective voluntary actions that employers, their employees and general residents in the region can take to help improve air quality in the metro Atlanta region during the ozone season.

EPA is approving the PSG program, its evaluation procedures, and the expected emission reduction targets as an enforceable part of the SIP under the VMEP policy. Additional information can be found in the above referenced proposal notice.

Section 172(c)(9) and 182(c)(9) of the CAA require SIPs to contain additional measures that will take effect without further action by the state or EPA if an area fails to attain the standard by the applicable date or to meet rate-of-progress (ROP) deadlines. The CAA does not specify how many contingency measures are needed or the magnitude of emissions reductions that must be provided by these measures. Although the Atlanta SIP does not contain such contingency measures EPA has determined that existing federally enforceable measures would provide the necessary substantive relief sufficient to provide the basis for approval of an extension to the area's attainment date. Georgia must still submit the required contingency measures to EPA for approval into the SIP. Additional information can be found in the above referenced proposal notice.

EPA received comments from the public on the Notices and Supplemental Notices of Proposed Rulemaking published in the Federal Register on December 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972.) Comments were submitted by The Georgia Conservancy, Environmental Defense, Natural Resources Defense Council, The Sierra Club, Souther Company Services, Kilpatrick Stockton LLP, Georgia Center for Law in the Public Interest, American Road & Transportation Builders Association (ARTBA), Advocates for Safe and Efficient Transportation (ASET), National Association of Home Builders (NAHB), and the Southern Environmental Law Center.

EPA sets forth below in this section our responses to adverse comments received on these notices which are relevant to this rulemaking. Additionally, some of the comments received in Docket A-98-47 on EPA's notice regarding “Extensions of Attainment Dates for Downwind Transport Areas” 64 FR 14441 (March 25, 1999), are relevant to this rulemaking. EPA incorporates its responses to those comments, set forth in 66 FR 585, 66 FR 634, 66 FR 666 (January 3, 2001), 66 FR 26913 (May 15, 2001), and 66 FR 33996 (June 26, 2001) insofar as herein relevant.

The following discussion summarizes and responds to all adverse comments:

EPA proposes to extend the attainment date for the Atlanta metropolitan area to November 15, 2004, 66 Fed. Reg. 63,972. Because this extension violates the plain meaning of the CAA, it must be rejected under Step One of Chevron U.S.A. v. Natural Resources Defense Council , 467 U.S. 837, 842-43 (1984). Moreover, the extension rests on an unreasonable—and therefore impermissible—interpretation that must be rejected even if Chevron Step Two applies. See Whitman v. American Trucking Assns ., 121 S. Ct. 903, 916 (2001) (reversing an EPA interpretation of Subparts 1 and 2 that “goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear”); Natural Resources Defense Council v. Daley , 209 F.3d 747, 753 (D.C. Cir. 2000) (rejecting an agency interpretation that “diverges from any realistic meaning” of the statute).

The CAA expressly sets November 15, 1999, as the attainment date for serious areas, and authorizes no extensions on the grounds asserted by EPA. The structure of the CAA further refutes EPA's assertion of authority to amend those deadlines administratively. While accepted principles of statutory interpretation would in any event preclude EPA's attempt to administratively amend express statutory provisions, such amendment is especially unwarranted with respect to deadlines for attainment of primary air quality standards.

EPA's claim that it has authority to extend attainment dates based on pollution transport is further refuted by express CAA provisions showing that Congress expressly authorized both (1) attainment date extensions and (2) modifications to the CAA's provisions based on pollution transport. These extension provisions provide the exclusive authority for attainment date extensions because when Congress has prescribed the conditions under which an extension may be granted, no other conditions may be created by the Agency to grant an extension. The U.S. Court of Appeals for the Eleventh Circuit rejected EPA's administrative amendment of the CAA plain terms.

In this final rule, EPA responds to the adverse comments on EPA's legal authority to extend Atlanta's attainment date received in response to the relevant proposals. The responses to comments in a number of prior rulemakings concerning the attainment date extensions granted in Washington, DC, Springfield, MA, Greater CT, Beaumont Texas, and St. Louis are relevant and responsive to the comments received on Atlanta. In those prior rulemakings, EPA responded to similar challenges to the legality of the attainment date extension policy, and EPA therefore incorporates its responses to these comments, set forth in 66 FR 586, 66 FR 634, 66 FR 666 (January 3, 2001), 66 FR 26913 (May 15, 2001) and 66 FR 33996 (June 26, 2001) insofar as herein relevant.

Many of the legal arguments and other issues raised in the comments addressing the attainment date extension proposed in Atlanta have also been addressed in the briefs EPA has filed in litigation concerning the extensions in Washington, D.C. ( Sierra Club v. Whitman ) No. 01-1070 (D.C. Cir.), St. Louis, Sierra Club v. EPA 01-2844, No. 01-2845 (7th Cir.), and Sierra Club v. Whitman , Nos. 01-5123 and 01-5299 (D.C. Cir.) and Beaumont Sierra Club v. EPA , No. 01-60537 (5th Cir.). These briefs have been placed in the docket for this rulemaking and are incorporated herein by reference.

In response to the contention that EPA's proposed attainment date extension conflicts with an order previously issued by the Eleventh Circuit Court of Appeals, the Eleventh Circuit Court of Appeals has not even directly reviewed, or ruled on, and thus certainly has not formally rejected, EPA's attainment date extension policy. The court did issue a stay of EPA's adequacy determination on the emissions budgets in the 1999 attainment demonstration SIP pending completion of litigation in Georgians for Transportation Alternatives, et al. v. EPA, et al ., No. 00-12187, order of July 18, 2000. The petitioners had alleged in their stay request that the budget was inadequate because the SIP illegally relied upon an attainment date extension. However, EPA responded that the budget would be adequate even if an attainment date were not granted and the area were bumped up, since in either case the attainment date would be the same. The court granted the stay in a one line order without opinion. The most that can be taken from this action is that the court believed petitioners had some likelihood of success on the merits and in light of allegations of potential harm chose to preserve the status quo pending completion of the litigation. The issuance of the stay without opinion in no way indicates that the court affirmatively rejected EPA's extension policy. The court never ruled further on the matter since EPA ultimately withdrew its adequacy determination based on new factual developments relating to the attainment demonstration. Similarly, in a recent development that occurred after EPA received comments on its instant action, the 11th Circuit Court of Appeals issued a stay on the recently adequate MVEB for the Atlanta nonattainment area in response to a request for an expedited stay in Sierra Club, et al v. EPA , No. 02-11188-F on April 17, 2002. However, the 11th Circuit of Appeals did not provide any rationale for its grant of the stay. It simply issued a stay in the same manner as in Georgians for Transportation Alternatives, et al. v. EPA, et al ., No. 00-12187. Since a stay is not an adjudication on the merits, the grant of a stay does not change EPA's position as to the legality of the extension policy.

A commenter's contention that EPA should not grant Atlanta an attainment date extension because Georgia should have acted earlier to commence a section 126 proceeding to reduce emissions from upwind states ignores the fact that an adequate analysis and allocation of responsibility for transport did not exist in time to support relief by the area's original attainment date. See similar responses in EPA's prior rulemakings on the other attainment date extension areas.

Another argument raised is that reclassification of an area affected by transport is necessary to achieve additional interim reductions in the area, even where they will not advance attainment and when a combination of local and upwind reductions will bring the area into attainment. The commenter relies for his argument on section 176(c)(1)(A), a conformity provision which contains only a general characterization of the purposes of the SIP as a whole. While EPA agrees that SIPs have purposes other than that of providing for attainment, the CAA contains specific and detailed requirements directed to fulfilling those purposes, and the SIP for Atlanta meets those requirements. EPA believes that, under the circumstances, Congress did not intend to require a SIP to go beyond those requirements in order to obtain reductions to compensate for pollution coming from outside the area's borders. The commenter also references Natural Resources Defense Council v. Reilly , 983 F.2d 259, 268, 272 (D.C. Cir. 1993). This case involved promulgation of requirements for on-board refueling vapor recovery systems, a provision far different from the complex relationship among the CAA provisions regarding transport and reclassification. Contrary to commenter's contention that Reilly supports the concept of “double controls”, in the context of onboard regulation, Congress mandated that Stage II controls be withdrawn after the promulgation of onboard controls in moderate areas, and also mandated a more delayed withdrawal from serious and severe areas because of the decade-long phase-in required for effective onboard controls in those areas. That case did not deal with transport, and nothing in Reilly indicates that Congress would be supportive of local areas being held responsible for reducing transported pollution for which upwind areas are obligated to promulgate and implement controls.

A commenter argues that it is equitable to reclassify Atlanta because, although it is downwind of some areas, it is upwind of other nonattainment areas, and may contribute to nonattainment there. Reclassification of an upwind area, however, is not the mechanism prescribed by Congress to remedy transport. An area is not required to be reclassified if it provides for local attainment but contributes to nonattainment elsewhere. For purposes of reclassification the relevant analysis is of the air quality and transported pollution problem in the area being reclassified, and not the air quality downwind from the area. To the extent that the area is responsible for violations in other areas downwind, it is subject to the provisions of section 110(a)(2)(D) and section 126.

Commenters cite to prior case law in support of such propositions as: a list of specific remedial provisions excludes the possibility of inferring that Congress intended any additional forms of relief; an agency cannot substitute its policy choices for those of Congress; the attainment deadlines are central to the CAA and cannot be adjusted. EPA has previously set forth its views on these issues in its prior responses and in its briefs. None of the cases or arguments cited by the commenter alters these views, or undermines EPA's authority to interpret the text of the statute in its full context so as to give effect to Congress's intent. EPA is implementing the attainment date extension not as a mere Agency policy preference, but in order to fulfill Congress's intent. Moreover, even in the absence of explicit statutory authority, EPA may grant extensions of time under the CAA where it concludes that Congress would have done the same had it foreseen the circumstances presented. NRDC v. EPA, 22 F.3d 1125 (D. C. Cir. 1994).

EPA's proposal to grant an unauthorized date extension has been pre-empted by the re-classification of the Atlanta area that occurred by operation of law pursuant to section 182(g)(3) of the CAA. That provision provides for reclassification of a serious area to severe “[i]f a State fails to submit a demonstration under paragraph 2 for any Serious area within the required period,” and fails to make a election of one of the statutory options prescribed by paragraph (3) for remedying that failure.

The fact that Georgia failed to make the demonstration required by section 182(g)(2) is established by EPA's response to a Freedom of Information Act request submitted April 20, 2001.

Atlanta failed to comply with the rate of further progress milestone for NO X .

Under paragraph (2) of subsection 182(g), each State containing all or part of a nonattainment area classified serious or higher is required to submit, at specified times after a milestone has occurred, “a demonstration that the milestone has been met.” This provision further provides,

A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require, by rule. The Administrator shall determine whether or not a State's demonstration is adequate within 90 days after the Administrator's receipt of a demonstration which contains the information and analysis required by the Administrator.

Under paragraph (3), “If a State fails to submit a demonstration under paragraph (2),” it must, within specified time frames, elect among several choices, and if it fails to make such an election, then, at a specified time, it is reclassified by operation of law.

By its terms, paragraph (3) mandates the reclassification, or bump-up, only if the State fails to submit “a demonstration under paragraph (2).” Paragraph (2), in turn, provides by its terms that the required demonstration is one that “in such form and manner * * * contain[s] such information and analysis as the Administrator shall require, by rule.”

Subsection 182(g) does not provide a date by which EPA must promulgate the rule that establishes the requirements for the demonstration, and EPA has not yet promulgated such a rule. By limiting the bump-up to circumstances in which the State fails to submit a demonstration that conforms to EPA requirements for form and content, subsection 182(g), read most straightforwardly, indicates at least through implication that absent such a rule, there is no requirement for any demonstration that, if not submitted, would ultimately result in a bump-up.

This reading is sensible in light of the many different methods that EPA could require for the demonstration. The milestone compliance demonstration is designed to require some form of accounting to ascertain whether the area has achieved the amount of emissions reductions that the SIP requires by that time. One method of making this calculation may be to require a comprehensive inventory of all sources near the time of the milestone. This approach may require careful consideration because of the time and expense typically involved in conducting inventories, and because other provisions of the CAA require inventories, but at different times than would be required by the milestone compliance demonstration. See 182(a)(3). A second method may be to allow emissions estimates, consistent with approved methodologies, rather than comprehensive inventories. A third method may be to determine whether the controls required under the SIP to have been implemented by the time of the milestone have, in fact, been implemented. These different methods would impose significantly different burdens on States and sources, and may yield somewhat different results.

This review of the different methods for making the demonstration makes clear that the most straightforward reading of section 182(g)(2)-(3)—to require application of the bump-up by operation of law only after a EPA promulgates rules for the demonstration—is sensible. It makes sense that EPA should first tell the States, by rule, which of the various milestone accounting methodologies they must use. By comparison, it would make little sense to punish, in effect, a State with a bump-up for failing to submit a demonstration when EPA has not yet told the State the form and content for the demonstration, and when important differences exist in the various methods for making the demonstration.

The CAA requires serious ozone nonattainment areas to develop and submit Rate of Progress Plans (ROP) which would provide for at least a 15 percent reduction of volatile organic compound (VOC) emissions 1990 to 1996 (15 percent plan), and Post-1996 ROPs, which would provide for at least three percent per year in either VOC or NO X annually for 1997, 1998, and 1999, (9 percent plan). The 15 percent plan was submitted on November 15, 1993, and the 9 percent plan was submitted on November 15, 1994. Both plans were revised on June 17, 1996.

All elements of the 15 percent plan, which reduced VOC emissions by 117.06 tons per day were implemented by the GAEPD. EPA granted final approval to this plan on April 26, 1999, (64 FR 20186). A milestone compliance demonstration (MCD) as required by section 182(g) of the CAA was submitted by the GAEPD to EPA on February 14, 1997.

All elements of the 9 percent plan, which reduced NO X emissions by 50.10 tons per day, were implemented by the GAEPD. Although the GAEPD did not submit a milestone compliance demonstration, there is a discussion in section 3.2.2. of the attainment demonstration which states that all control measures associated with the 15 and 9 percent plans have been adopted and implemented. EPA granted final approval to this plan on March 18, 1999, (64 FR 13348).

The Atlanta SIP fails to demonstrate attainment with a standard of 0.12 ppm, rather than 0.124 which was not promulgated as the NAAQS.

Although the 1-hour NAAQS itself includes no discussion of specific data handling conventions similar to that of the 8-hour NAAQS, EPA's publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the 1-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard. EPA has clearly communicated the data handling conventions for the 1-hour ozone NAAQS in regulation and guidance documents. In the 1990 Amendments to the CAA, Congress expressly recognized the continuing validity of EPA guidance.

As early as 1977, two years before EPA promulgated the 1-hour ozone NAAQS, EPA provided in guidance that the level of the standard dictates the number of significant figures to be used in determining whether the standard was exceeded (Guidelines for the Interpretation of Air Quality Standards, OAQPS No. 1.2-008, February 1977). In addition, the regulations governing the reporting of annual summary statistics from ambient monitoring stations for use by EPA in determining national air quality status clearly indicate the rounding convention to be used for 1-hour ozone data (40 CFR 58, Appendix F). In 1979, EPA issued additional guidance specific to ozone in which EPA provided that “the stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of .12 ppm means that measurements are to be rounded to two decimal places (.005 rounds up), and, therefore, .125 ppm is the smallest concentration value in excess of the level of the standard.” (Guideline for the Interpretation of Ozone Air Quality Standards, EPA-450/4-79-003, at p. 6.) EPA's guidance on air quality modeling is consistent with those Guidelines. See e.g., Guidance on Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, July 1996.

The level of the 1-hour ozone National Ambient Air Quality Standard (NAAQS) is defined in 40 CFR 50.9 as 0.12 parts per million (ppm), not 120 parts per billion (ppb) as implied by the commenter. In other words, the 1-hour ozone NAAQS is specified as two significant digits and the data handling approach employed to compare ambient air quality data to the 1-hour ozone standard is to round to two decimal places as per the regulations and guidance referenced above.

In the 1990 Amendments to the CAA, Congress expressly provided that “[e]ach regulation, standard, rule, notice, order and guidance promulgated or issued by the Administrator under this Act, as in effect before the date of the enactment of the Clean Air Act Amendments of 1990 shall remain in effect according to its terms * * *” Thus, under the amended CAA, Congress expressly carried forth EPA interpretations set forth in guidance such as the guideline documents interpreting the NAAQS.

The control strategy submitted in the SIP as developed from the photochemical grid modeling demonstration will not provide for attainment.

Even though, evidence from the photochemical grid model demonstrates that the control measures submitted in the current SIP may result in exceedances, the demonstration does provide for attainment. An area is considered to monitor attainment if each monitor site has air quality observed ozone design values (4th highest daily maximum ozone using the three most recent consecutive years of data) at or below the level of the standard. Therefore, it is appropriate for EPA, when making a determination that a control strategy will provide for attainment, to determine whether or not the model predicted future design value is expected to be at or below the level of the standard. Since the form of the 1-hour NAAQS allows exceedances, it did not seem appropriate for EPA to require the test for attainment to be “no exceedances” in the future model predictions. The Atlanta demonstration contains adequate measures to reduce the area-wide design value to below the level of the NAAQS.

The photochemical grid modeling assumed an attainment year of 2003. Allowing additional time to redo the modeling for 2004 would not be consistent with the CAA intent that areas come into attainment as expeditiously as practicable nor would it significantly advance the technical basis for the attainment demonstration. Therefore, EPA agreed that attainment for 2004 could be demonstrated with the submittal of a 2004 emissions inventory as a supplement to the 2003 demonstration, provided that the 2004 emissions are less than or equal to the level of emissions used in the modeling. It could then be concluded that if emissions for 2004 were modeled, the predicted concentrations of ozone would be less than or equal to the 2003 1-hour ozone concentrations modeled. As described below, the state has adequately addressed the differences between the emissions projections for 2003 and 2004.

The Atlanta 1-hour ozone attainment demonstration is based on photochemical grid modeling and weight of evidence analyses as recommended in the EPA's guidance for the 1-hour ozone attainment demonstration. Georgia submitted an attainment modeling demonstration supporting the attainment date extension to 2003 for the Atlanta 13-county nonattainment area to achieve the 1-hour ozone NAAQS to EPA on October 28, 1999. EPA proposed to approve the attainment demonstration and an attainment date extension request on the December 16, 1999, in the Federal Register (see 64 FR 70478). The photochemical grid ozone modeling performed for the Atlanta 1-hour ozone nonattainment area is based on an emissions projection to 2003, the attainment extension year that the Georgia Environmental Protection Division (Georgia EPD) requested of EPA in it's October 28, 1999, submittal. On December 16, 1999, EPA proposed approval of the 2003 attainment strategy developed with photochemical grid modeling and the supporting weight of evidence (WOE) analyses. EPA does not agree that errors and deficiencies exist in the 2003-based photochemical modeling to affect its approvability for demonstrating attainment of the 1-hour ozone NAAQS. Detailed information on the 2003 Atlanta attainment photochemical modeling demonstration, the supplemental WOE analysis and EPA modeling requirements are contained in the Technical Support Document for the December 16, 1999, proposal (64 FR 70478). The 2003 modeled control strategy simulations indicate that ozone levels in the Atlanta area will be significantly reduced when the identified additional controls are implemented.

Subsequent to the State's October 1999 submission and EPA's December 1999 proposed approval of the Atlanta attainment demonstration, the source compliance date under the NO X SIP Call rule was extended from May 1, 2003 to May 31, 2004. In May 1999, the Court of Appeals for the District of Columbia Circuit stayed the obligation of states to submit SIPs in response to EPA's NO X SIP Call rule, pending litigation over the rule. In March 2000, the Court issued an opinion largely upholding the SIP Call rule. In later rulings in the summer of 2000, the Court lifted the stay of the SIP submission obligation, but provided that since SIP submissions were delayed, EPA could not mandate that states require sources to comply with state-adopted rules under the SIP Call earlier than May 31, 2004. Because the attainment demonstration relied on upwind reductions from the NO X SIP Call. Georgia determined that it could not attain in the year preceding the source-compliance date under the SIP and submitted a revised SIP requesting an attainment date of November 2004.

The revised attainment demonstration submitted by the State on July 17, 2001, relies on the photochemical grid modeling that was submitted in October 1999, but provides additional analysis. Although a 2004 attainment year is being proposed for approval for the Atlanta nonattainment area because of the upwind contribution, the local controls in the attainment strategy will all be implemented no later than May 2003.

The 2004 demonstration is based on the following procedures. First, the State uses information from the photochemical grid modeling and ambient air modeling to assess whether or not additional levels of emission reductions are needed beyond those that were necessary to demonstrate attainment. This assessment was completed using the emissions projections for 2004. The second part of the analysis involves an assessment of the levels of attainment emissions for 2004 and whether or not attainment in 2004 is reasonably likely to occur. A determination was made that if the estimates of the projected 2004 emissions with controls implemented are at or below the 2003 modeled levels then attainment by 2004 is reasonably likely to occur.

A comparison of the 2003 and 2004 modeling inventories indicate that NO X emissions increase about 2 percent over the modeling domain, while VOC emissions decrease over 8 percent. Since the total NO X emissions projected for 2004 are more than the levels modeled for 2003, a demonstration was needed to show why this would not adversely affect the ability of the area to attain the 1-hour ozone NAAQS by 2004. We believe that the relationship between VOC emission reductions and ozone concentration reductions and between NO X emission reductions and ozone concentration reductions can be determined using the photochemical modeling results. Sensitivity analyses from the photochemical modeling in the fine grid were used to develop a relationship to assess the potential for increases in ozone formation for the emission levels projected for 2004. The majority of the local emissions reductions for the attainment strategy occur within the 4-km fine grid with the exception of two power plants near the southern boundary. The sensitivity simulations used were based on the three episode days (i.e., July 31, 1987; August 1, 1987; and July 8, 1988) that were used in the 2003 control strategy simulations. These sensitivity simulations represented modeling scenarios based on reductions across emission inventory categories (e.g., low-level source or elevated sources) while holding all other emissions source categories constant. The air-quality-to-emission-change ratio (i.e., tons per day of emissions change per ppb change in ozone) was developed for each day and sensitivity simulation. The average of these ratios over all days and sensitivities was then determined for each pollutant for each episode day.

The submitted ratios indicate that a 41.5 TPD increase in NO X is needed to cause a 1.0 ppb increase in ozone or a 164.9 TPD increase in VOC is needed to cause a 1.0 ppb increase in ozone. These relationships were applied to the emissions changes predicted between 2003 and 2004 as presented in Table 1. The tables indicate that NO X emissions are expected to increase by 12.9 TPD and VOC emissions will decrease by 43.7 TPD in 2004. The NO X and VOC ratios were applied to the emission changes between 2003 and 2004 to determine how ozone formation would be affected in 2004. This analysis indicated that a 0.3 ppb increase in ozone from the increase in NO X emissions is offset by the a 0.3 ppb decrease in ozone from the VOC emissions. The identified shortfall gap has thus been met by the State and the necessary control measures approved by EPA. Therefore, the assessment supports the conclusion that the area will attain the NAAQS in 2004

The Atlanta SIP fails to demonstrate timely attainment through the impermissible use of linear rollback assumptions to demonstrate attainment under the weight of evidence approach to demonstrating attainment. The relative reduction factor (RRF) analysis used to estimate a future design value provides no rational basis for discounting the emissions reductions required by the Urban Airshed Model (UAM), to show attainment in all grid cells for future predictions for each day modeled.

Episodic photochemical grid modeling is the primary basis for the attainment demonstration, as it was used to define the majority of the control strategy. However, the modeling and corroborative analyses, which form the basis of the weight of evidence analysis, provide a preponderance of evidence to support EPA's determination that attainment of the 1-hour ozone NAAQS will be achieved in 2004. One of these WOE analyses involved the use of a relative reduction factor (derived from the local model results) to determine the level of additional NO X and VOC emissions reductions needed to attain.

EPA has generally relied on photochemical modeling to evaluate the attainment demonstration control strategy, and has used locally derived adjustment factors as a component to estimate the extent to which additional emissions reductions—not the core control strategy—would reduce ozone levels and thereby strengthen the weight of evidence test. This limited use of adjustment factors is more technically sound than the unacceptable use of proportional rollback. The limited use of adjustment factors is more practical in light of the uncertainty in the modeling; the resources and time required to perform additional modeling; and the requirement that serious areas perform a progress check by the end of 2003.

The relative reduction factor was used in one WOE analysis to estimate the reductions from additional control measures in the weight of evidence analysis. The 1996 modeling guidance recommends the optional use of weight of evidence analysis partly due to the form of the 1-hour ozone NAAQS. The 1-hour ozone NAAQS allows exceedances, and taking modeling uncertainty into consideration, EPA is not requiring all predicted values in the future model run to be below the level of the NAAQS. The 1996 guidance provides an approach for addressing exceedances (selection of episodes representative of the areas design value and the “statistical” test) and the 1999 guidance provides a method for testing whether additional measures, not modeled, are needed (estimate of a future design value). Since exceedances are allowed, EPA does not agree that the future modeling shows that the area will not attain. The modeling indicates the area may experience an exceedance (model predictions above the level of the NAAQS) but does not indicate this will lead to a violation (future design value estimate is below the level of the NAAQS).

EPA did not rely on “proportional” rollback as defined in Section 14.0 of 40 CFR 51 Appendix W which defines “rollback” as “a simple model that assumes that if emissions from each source affecting a given receptor are decreased by the same percentage, ambient air quality concentrations decrease proportionately.” The prohibition in section 6.2.1.e of Appendix W (i.e., “Proportional (rollback/forward) modeling is not an acceptable procedure for evaluating ozone control strategies.”) applies to the use of a rollback method which is empirically/mathematically derived and independent of model estimates or observed air quality and emissions changes as the sole method for evaluating control strategies. In this case, EPA used a locally derived as determined by the model, relative reduction factor to estimate a future design value and then used observed changes in air quality (i.e., ratio of change in emissions to change in ozone) to estimate additional emission reductions to achieve an additional increment of ambient improvement in ozone. This did assume a linear relationship between the precursors and ozone for determining additional reductions needed for small improvements in ozone.

In 1999, EPA issued additional guidance (hereafter, the 1999 guidance)  1 that makes further use of model results for base case and future emission estimates to predict a future design value. This guidance describes the use of an additional component of the WOE determination, which requires, under certain circumstances, additional emission reductions that are or will be approved into the SIP, but that were not included in the modeling analysis, that will further reduce the modeled design value. An area is considered to monitor attainment if each monitor site has air quality observed ozone design values (4th highest daily maximum ozone using the three most recent consecutive years of data) at or below the level of the standard. Therefore, it is appropriate for EPA, when making a determination that a control strategy will provide for attainment, to determine whether or not the model predicted future design value is expected to be at or below the level of the standard. Since the form of the 1-hour ozone NAAQS allows exceedances, it did not seem appropriate for EPA to require the test for attainment to be “no exceedances” in the future model predictions. The method outlined in EPA's 1999 guidance uses the highest measured design value from all sites in the nonattainment area for each of three years. The three year “design value” represents the air quality observed during the time period used to predict ozone for the base emissions. This is appropriate because the model is predicting the change in ozone from the base period to the future attainment date. The three yearly design values (highest across the area) are averaged to account for annual fluctuations in meteorology. The result is an estimate of an area's base year design value. The base year design value is multiplied by a ratio of the peak model predicted ozone concentrations in the attainment year (i.e., average of daily maximum concentrations from all days modeled) to the peak model predicted ozone concentrations in the base year (i.e., average of daily maximum concentrations from all days modeled). The result is an attainment year design value based on the relative change in peak model predicted ozone concentrations from the base year to the attainment year.

In the event that the attainment year design value is above the standard, the 1999 guidance provides a method for identifying additional emission reductions, not modeled, which at a minimum provide an estimated attainment year design value at the level of the standard. This step uses a locally derived factor which assumes a linear relationship between ozone and the precursors. This is the WOE analysis used by the State to determine additional reductions needed for attainment beyond those modeled. It incorporates the analysis used in the RRF analysis. The regulations do not mandate or nor does EPA guidance suggest that States must model all control measures being implemented. Moreover, a component of this technique, the estimation of future design value, should be considered a model predicted estimate. Therefore, results from this technique are an extension of “photochemical grid” modeling and are consistent with Section 182(c)(2)(A).

The Atlanta SIP fails to demonstrate attainment by averaging the emissions reductions required for different atmospheric episodes to determine reductions needed to attain at specific monitoring sites, and averaging between monitoring sites to support a weight of the evidence analysis.

The commenter is concerned that calculating the RRF by averaging across episode days is not justified by sound science. When developing the 1999 guidance, EPA considered the use of day specific RRFs versus an average RRF across the days. It was determined that due to day to day variability in ozone concentrations there is more uncertainty in the day specific RRFs, than the RRF calculated by averaging across days. Therefore this approach reduces the impact of a single day and the uncertainty associated with the calculation of the estimated future design value. Since the goal was to estimate a future design value (which allows exceedances), EPA used the average across days. This approach demonstrates future design values below the NAAQS, not day specific predictions below the NAAQS. EPA did estimate an area-wide future design value based on the area's worst design value, instead of site specific future design values as recommended in the EPA's 8-hour modeling guidance. Site specific estimates would provide more information on the spatial variability in the future estimates. However, we have seen from other analyses that other sites typically respond in the same manner as the worst site. The episodes modeled in the attainment demonstration represent the most severe days and highest ever monitored ozone concentration from the three most common meteorological regimes (i.e., stagnation, northwest winds, and the worst case of all other meteorological conditions combined) observed in the Atlanta monitoring network. The guidance does not require that an area demonstrate no exceedances for these severe days, but rather for those days that are representative of the area's design value. It is likely that the model could have predicted lower ozone values for the future scenarios if more representative episodes had been modeled.

Failure to consider the implications of uncertainty in results precludes demonstration of attainment.

EPA considers uncertainty as the “notion that model estimates will not perfectly predict observed air quality at each receptor location, neither now nor in the future.” 2 A great deal of variability in the model estimate is possible from day to day. This variability is in part due to the use of different days, limits on model formulation, limits on understandings of the problem to be modeled, database limitations, uncertainties in forecasting emissions. Some of this variability can be investigated through the use of diagnostic tests which describe alternate, yet highly, plausible variations in the input estimates for wind fields, emission, and modeling methods for chemistry, transport algorithms, removal processes, and numerical routines. For these reasons, EPA recommends that a model performance evaluation be conducted, using graphical and statistical measures, to determine how the model replicates historical ozone events. The state developing the attainment demonstration needs to verify that the model is properly simulating the chemistry and atmospheric conditions through diagnostic analyses and model performance tests. Once these steps are satisfactorily completed, the model is ready to be used to generate air quality estimates to support an attainment demonstration. EPA does not require a rigid criterion for model performance, similar to the 95% certainty level cited by the commenter to be used in a pass/fail test. However, certain statistical parameters are recommended to be developed. Statistical performance measures are recommended to assess whether or not the model evaluation is acceptable. 3 The three primary statistical measures calculated, and the EPA recommended “acceptability” ranges used in the SIP are unpaired accuracy of the peak (EPA goal: within ± 15-20 percent), and the mean relative error (EPA goal: within ± 5-15 percent, mean unsigned relative error (EPA goal: 30-35 percent). If a state develops an attainment demonstration that indicates acceptable model performance according to the UAM guidance, EPA allows the State to use that model, inputs, and projected emissions to develop an attainment strategy. Although there are uncertainties associated with the model outputs, it can still be used to support an attainment demonstration and make use of the RRF analysis as part of the weight of evidence.

As calculated, the RRF negates some of the model uncertainty. The same modeling assumptions and meteorological inputs are used for the base year and future year model simulations (only emissions change). Thus to some degree simulated ozone concentrations for both the base year and future year show similar bias (both magnitude and direction). This model bias is eliminated when the RRF is calculated. Since the RRF is a ratio, the bias in the future year concentration (numerator) is canceled by the bias in the base year concentration (denominator). This ratio is then multiplied by the areas observed design value to estimate a future design value. Since in most cases, uncertainties associated with observations are negligible compared to the uncertainties associated with the modeled ozone concentrations, the resulting future design value is a reasonable prediction of future air quality which accounts for uncertainty in day specific model predictions. Therefore, when the RRF is applied to the observed ozone design value concentration, values below the standard indicate attainment is likely to be achieved.

Commenters object to the arbitrary and capricious use of MOBILE5 to estimate motor vehicle emissions which has been shown to significantly underestimate motor vehicle emissions.

The tool used to estimate motor vehicle emissions for the attainment demonstration is the MOBILE model. The accuracy of this estimate is critical because, as demonstrated by Table 1 in the notice, on-road sources account for 53 percent of the total NO X emission inventory, and 35% of VOCs for the nonattainment area. MOBILE5 was used to estimate motor vehicle emissions in the region for the attainment demonstration. The commenter believes the vehicle emissions are underestimated and should have been run using MOBILE6.

As noted in the January 18, 2002 Memorandum titled, “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity,” the CAA requires that SIP inventories and control measures be based on the most current information available and applicable when a SIP is developed [Section 172(c)(3) of the CAA and 40 CFR 51.112(a)(1)]. However, as noted in the answer to the first question in that document, “EPA believes that the CAA would not require states that have already submitted SIPs or will submit SIPs shortly after MOBILE6's release to revise these SIPs because a new motor vehicle emissions model is now available.” This concept was reiterated in the January 29, 2002, Federal Register notice announcing the approval and availability of MOBILE6 for use in SIPs and conformity determinations. Use of the MOBILE6 model for SIP development was not allowed before the January 29, 2002 Federal Register notice. As the Atlanta attainment demonstration was submitted on July 17, 2001, and the MOBILE modeling was performed prior to that date, MOBILE5 had to be used as MOBILE6 was not yet approved for use in SIP development.

It should also be noted that at the time of the development of the Atlanta attainment demonstration changes were being made to the various draft versions of the MOBILE6 model as problems were detected in testing the drafts. Since the MOBILE6 model was not available when the Atlanta SIP was developed EPA concludes that it was appropriate to develop the SIP with the MOBILE5 model. In addition, changes in emission rate estimates, as compared to those modeled with MOBILE5, are area specific. Therefore, the exact effect in Atlanta can not be determined until MOBILE6 is run with area specific data. EPA can not now predict whether the MOBILE6 model will produce lower or higher emissions for the attainment year for Atlanta.

Commenters object to taking credit for expected reductions in motor vehicle emissions from the PSG that have not occurred, are not being demonstrated, are not enforceable and may not be reasonably expected.

The Voluntary Mobile Source Emission Reduction Policy is designed to encourage innovation in air pollution control without the typical regulatory hammer used to enforce against stationary sources. The policy allows a state to take a small amount of credit for reasonably expected emission reductions. The reasoning should be based on historical trends or other methodologies or commitments to meet certain goals. In addition, the State must commit to monitor, evaluate, and reconcile any emissions reduction shortfall from such programs in a timely manner. In the case of the PSG program, the State demonstrated that trends with the PSG program show that it has the potential to achieve the emission reductions claimed. Furthermore, the state committed to specific target levels or participants and corresponding emission reductions. Should the target levels not be met, the state is responsible for the shortfall and must make up the shortfall through other measures. Enforcement of these measures is available under the SIP against the State should it not timely reconcile any emission reduction shortfall. Based on this information, EPA determined that the expectations of the PSG program are reasonable and that there are enough evaluation periods to assure that the 2004 emission reductions goals are met. EPA does not believe that the PSG program should be considered as part of the additional WOE and did not consider it in the WOE evaluation. See 66 FR 57159, 57190 (November 14, 2001) for further information.

EPA's basis for allowing Georgia to reject most of the control measures reviewed for RACM is arbitrary and capricious, and not supported by law. Comments submitted to EPA in response the Agency's supplemental RACM notice in October 2000 were incorporated by reference. In that proposal, EPA confirms Georgia's assertion that not a single additional control measure was reasonably available over the next five years to address ozone pollution in the Atlanta area. Such an extreme position is neither consistent with the CAA nor supported by the record.

EPA acknowledged that additional measures were available to reduce ozone levels in the Atlanta area, but were not “reasonably available” within the meaning of the statute because they purportedly would not advance the date of full attainment. EPA asserted that the RACM mandate was part of the CAA's requirement that plans demonstrate attainment “as expeditiously as practicable,” and that it would be unreasonable to require measures that do not advance the attainment date—even if those measures would reduce harmful ozone levels in the interim. The Agency's position conflicts with the CAA's requirement to adopt all RACM in addition to the requirement for timely attainment and for the SIP to eliminate or reduce the severity and number of violations of the NAAQS . These provisions require ozone SIPS to demonstrate attainment of the ozone standard “as expeditiously as practicable, but no later than” area's attainment date. 42 U.S.C. §§ 7511(a)(1), (c)(2)(A). EPA wrongly presumes that the sole purpose of SIPs is to achieve full attainment by the deadline, and that healthier air in the interim is irrelevant. This conflicts with the CAA's public health purpose. The CAA's mandates for interim progress in years prior to attainment to provide air quality benefits well in advance of full attainment. The State concedes that some additional control measures not rejected on other grounds will reduce NO X and VOC emissions, but rejects even those measures on the ground that they will not advance attainment. EPA inexplicably insists that such controls are not “reasonable” unless they solve the whole problem. Such a position conflicts with CAA's text and purpose and lacks any rational basis.

Neither the State nor EPA has quantified the level of local emission reductions that would be needed to advance the attainment date. EPA may not reasonably conclude that sufficient control measures are not available to satisfy this test until it first determines the amount of emission reduction needed to meet this requirement, and then determines that measures considered by the State and other measures proposed by other stakeholders and not considered by the State, do not achieve sufficient reductions to meet this test. To show the actual impact of additional controls on air quality, EPA would need to conduct photochemical grid modeling. Instead, EPA has estimated the ambient impact of the emissions reductions expected from the small suite of measures not rejected by Georgia, and applied the absurd ratio of 1 ppb to 41.5 t/d NO X discussed above to show that no air quality benefit would result. This approach is arbitrary for several reasons.

EPA failed to consider the potential emission reduction benefits of all of the available measures. EPA further failed to consider potential ozone reduction benefits from the combined implementation of strategies to reduce overall motor vehicle traffic (“transportation control measures” or “TCMs”). EPA refused to consider the potential emission reduction benefits of such combined implementation, asserting that it “would be impossible to analyze a seeming infinite set of combinations of measures for possible benefits.”

Absent a constitutional prohibition against the implementation of such measures, there is no legal bar to the consideration of such measures. Nor were these measures considered in the 1997 Georgia State report since federal tax laws supporting such strategies had not yet been enacted, and the measures had not been tried in other states and shown to be effective. The analysis provided by the State is wholly inadequate with respect to considering the cumulative effect on travel demand and SOV use in the Atlanta area if an aggressive, and comprehensive Commuter Choice program were developed and implemented in the region.

Given EPA's issuance of Guidance to the States supporting the development of such programs, it is especially unreasonable for EPA not to require that the air quality benefits of such a program be fully characterized and considered for adoption as a reasonably available control measure.

Georgia EPD performed a RACM analysis for potential control of NO X and VOC emission sources not included in the attainment demonstration for the Atlanta 1-hour ozone nonattainment area. Each control option was evaluated according to: (1) The State's authority to implement controls; (2) the amount of NO X reductions; (3) the amount of VOC reductions; (4) whether a similar control measure is already being implemented in the SIP; (5) the cost effectiveness of the control; (6) whether SIP credit has already been taken for the measure; and (7) whether the measure can be implemented to achieve reductions during the 2003 ozone season, (measures implemented after the 2003 ozone season cannot advance the 2004 attainment date). Any measures determined to be feasible to implement after the above described evaluation were grouped, by primary category, under the heading “Remaining measures.”. After further analysis of potential controls on each of the above sources, GAEPD concluded that it was not reasonable or practicable to further control these sources. Specifically, for many of the sources GAEPD stated that the time required to implement controls is unpredictable because legislative action authorizing such regulation by GAEPD would be required, or the number of facilities and potential discharge points affected by these control measures would require a tremendous increase in GAEPD resources to implement and ensure compliance (see 66 FR 63982 for further information.). Therefore, GAEPD concluded that these measures could not be implemented in time to achieve reductions by 2003. EPA agrees with the RACM analysis.

The EPA's approach toward the RACM requirement is grounded in the language of the CAA. Section 172(c)(1) states that a SIP for a nonattainment area must meet the following requirement, “In general.—Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” [Emphasis added.] The EPA interprets this language as tying the RACM requirement to the requirement for attainment of the national primary ambient air quality standard. The CAA provides that the attainment date shall be “as expeditiously as practicable but no later than * * *” the deadlines specified in the CAA. EPA believes that the use of the same terminology in conjunction with the RACM requirement serves the purpose of specifying RACM as the way of expediting attainment of the NAAQS in advance of the deadline specified in the CAA. As stated in the “General Preamble” (57 FR 13498 at 13560, April 16, 1992), “The EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the area as components of the area's attainment demonstration.” [Emphasis added.] In other words, because of the construction of the RACM language in the CAA, EPA does not view the RACM requirement as separate from the attainment demonstration requirement. Therefore, EPA believes that the CAA supports its interpretation that measures may be determined to not be RACM if they do not advance the attainment date. In addition, EPA believes that it would not be reasonable to require implementation of measures that would not in fact advance attainment (see 57 FR 13560). EPA has historically taken this interpretation and consistently implemented it through guidance since 1979 (see 44 FR 20372, 20375, April 4, 1979).

The term “reasonably available control measure” is not actually defined in the definitions in the CAA. Therefore, the EPA interpretation that potential measures may be determined not to be RACM if they require an intensive and costly effort for numerous small area sources is based on the common sense meaning of the phrase, “reasonably available.” A measure that is reasonably available is one that is technologically and economically feasible and that can be readily implemented. Ready implementation also includes consideration of whether emissions from small sources are relatively small and whether the administrative burden, to the States and regulated entities, of controlling such sources was likely to be considerable. As stated in the General Preamble, EPA believes that States can reject potential measures based on local conditions including cost. 57 FR 13561.

Also, the development of rules for a large number of very different source categories of small sources for which little control information may exist will likely take much longer than development of rules for source categories for which control information exists or that comprise a smaller number of larger sources. The longer the time frame for development of rules by the State would decrease the possibility that the emission reductions from the additional rules in the nonattainment area would advance the attainment date earlier than would be achieved from the larger amount of reductions expected from upwind controls, such as from the NO X SIP Call and controls from upwind severe areas with later statutory attainment dates.

Commenter's argument that the RACM requirement requires interim reductions in addition to the duty to demonstrate timely attainment is incorrect. Although various CAA provisions do require interim reductions, see, e.g., sections 7502(c)(2), 7511a(b)(1) and (c)(2)(B), nothing in the CAA indicates that areas must use the measures required by section 7502(c)(1) to reach these interim goals. Instead, the RACM provision in section 7502(c)(1) refers only to the obligation to demonstrate timely attainment. EPA reasonably concluded that interim reduction requirements could be met by any measures selected by the states, and that section 7502 requires implementation in areas that have met RFP requirements only if such reasonably available control measures as will provide for timely attainment of the NAAQS. As noted above, Atlanta has met its 15 percent and 9 percent ROP requirements.

Another appellate court recently upheld EPA's interpretation of the corresponding RACM provisions for particulate matter (PM-10) in section 7513a(a). Ober v. Whitman , 243 F.3d 1190 (9th Cir. 2001). There, EPA applied a two-part test in determining whether controls on certain sources of de minimis PM-10 emissions would need to be implemented as RACM—looking first at the actual amount of emissions and then at whether control of those emissions would contribute to attainment as expeditiously as practicable. Id . at 1193, 1196. The court upheld EPA:

Using the [attainment] deadline to determine whether controls must be imposed makes sense. The deadline is not an arbitrary date unrelated to air quality concerns. * * * In this case, the [plan] concludes that the deadline will not be met even if these small sources of PM-10 were controlled. Under those circumstances, it is reasonable to decline to control the de minimis sources of pollution.

Id. at 1198. EPA reasonably concluded here that section 7502(c)(1) similarly does not require implementation of measures that will not contribute to attainment as expeditiously as practicable.

The State does not include any of the measures required for severe areas. In view of its bump-up to severe by operation of law, the SIP must include the measures required by section 182(d), including reasonable further progress reductions for the years after 1999.

As noted in the response to comments 2-4, no bump-up by operation of law occurred due to any purported failure to submit the appropriate milestone compliance demonstration.

The Atlanta SIP fails to include the contingency measures required by section 172(c)(9) and 182(c)(9). This proposal is unlawful because it proposes to rely on excess emissions reductions that do not exist, and relies on federal measures not dependent on the attainment status of the nonattainment area.

Section 172(c)(9) and 182(c)(9) of the CAA require SIPs to contain additional measures that will take effect without further action by the state or EPA if an area fails to attain the standard by the applicable date or to meet rate-of-progress (ROP) deadlines. The CAA does not specify how many contingency measures are needed or the magnitude of emissions reductions that must be provided by these measures. However, EPA provided guidance interpreting the control measure requirements of 172(c)(1) and 182(c)(9) in the April 16, 1992, General Preamble for Implementation of the CAA (see 57 FR 13498, 13510). In that guidance, EPA indicated that states with moderate and above ozone nonattainment areas should include sufficient contingency measures so that, upon implementation of such measures, additional emissions reductions of up to 3 percent of the emissions in the adjusted base year inventory (or such lesser percentage that will cure the identified failure) would be achieved in the year following the year in which the failure has been identified. States must show that their contingency measures can be implemented with minimal further action on their part and with no additional rulemaking actions such as public hearings or legislative reviews. The additional 3 percent reduction would ensure that progress toward attainment occurs at a rate similar to that specified under the reasonable further progress requirements for moderate areas (i.e., 3 percent per year), and that the state will achieve these reductions while conducting additional control measure development and implementation as necessary to correct the shortfall in emissions reductions.

EPA has also determined that promulgated federal measures can be used to analyze whether the contingency measure requirements of section 179(c)(9) and 182(c)(9) have been met. While these measures are not SIP-approved contingency measures which would apply if an area fails to attain, EPA believes that existing federally enforceable measures can be used to provide the necessary substantive relief. Therefore, federal measures may be used in the analysis, to the extent that the attainment demonstration does not rely on them or take credit for them (see, e.g., 66 FR 586, 615, January 3, 2001, and the memorandum from G.T. Helms dated August 13, 1993, “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide Nonattainment Areas”.)

EPA believes the contingency measure requirements of sections 172(c)(9) and 182(c)(9) are independent requirements from the attainment demonstration requirements under sections 172(c)(1) and 182(c)(2)(A) and the ROP requirements under sections 172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to address the event that an area fails to meet a ROP milestone or fails to attain the ozone NAAQS by the attainment date established in the SIP. The contingency measure requirements have no bearing on whether a state has submitted a SIP that projects attainment of the ozone NAAQS or the required ROP reductions toward attainment. The attainment or ROP SIP provides a demonstration that attainment or ROP requirements ought to be fulfilled, but the contingency measure SIP requirements concern what is to happen only if attainment or ROP is not actually achieved. The EPA acknowledges that contingency measures are an independently required SIP revision, but does not believe that submission of contingency measures is necessary before EPA may approve an attainment or ROP SIP. However, EPA believes that areas should have sufficient reductions to meet contingency measure requirements, even if a contingency measure SIP has not been approved, in order to receive an attainment date extension.

EPA has examined the 15 percent ROP and 9 percent ROP plans which were submitted to EPA on June 17, 1996. EPA believes that substantive contingency measure requirements can be met by surplus reductions already achieved in the ROP plans. EPA granted approval to the 15 percent ROP in a Federal Register published on April 26, 1999, (64 FR 20186). The 9 percent ROP was approved in a Federal Register published on March 18, 1999, (64 FR 13348). Detailed information relating to the calculation of Georgia's 1990 adjusted baseline inventory for VOC and NO X emissions for the Atlanta area can be found in the above referenced Federal Register actions. The adjusted baseline inventory for VOC found in Georgia's 15 percent ROP is 526.19 tpd and the adjusted baseline inventory for NO X found in the 9 percent ROP is 483.12. Therefore, the required 3 percent ROP reductions would be 15.79 tps for VOC (0.03 x 526.19 = 15.79) and 14.50 tpd for NO X (0.03 x 483.12 = 14.5). In the 15 percent ROP Georgia exceeds the required VOC emissions reduction by 1.06 tpd. This equates to 0.20 percent of the required 3 percent reduction, leaving a balance of 2.80 percent to be made up by NO X reductions. This must be 2.8 percent of the NO X adjusted baseline inventory. Therefore, the required NO X reductions to satisfy contingency requirements for ROP equal 13.53 tpd (0.0280 x 483.12). The 9 percent ROP achieves an excess NO X emissions reduction of 19.47 tpd. Thus, the excess emission reductions achieved in the ROP plans meet the 3 percent contingency requirement.

Additionally, EPA examined the attainment demonstration for the Atlanta area submitted on July 17, 2001, for contingency measures. Although no measures have been specifically designated as contingency measures, EPA has found that measures that could reasonably constitute appropriate contingency measures are already contained in the SIP or exist in promulgated federal regulations. These measures include additional reductions after 2004 from EPA's Tier 2 tailpipe standards, national low emission vehicle program, and heavy duty diesel emission standards for 2004. Additionally, the Atlanta area will benefit from fleet turnover, as well as an additional model year of light duty vehicles subject to on-board diagnostic (OBD) testing. These measures will continue to provide reductions after November 2004, the attainment date EPA is approving for the Atlanta area. The measures are estimated to reduce emissions in the area by 1.45 percent of the 1990 VOC adjusted baseline emissions and 3.31 percent of the 1990 NO X adjusted baseline emissions by 2005 (the year following the time by which EPA must determine whether the area has attained). More details on EPA's contingency measure analysis are included in the docket for this rulemaking action. While there is not an approved contingency measure that would apply if the Atlanta area failed to attain, EPA believes that existing federally enforceable measures would provide the necessary substantive relief sufficient to provide the basis for granting an extension to the area's attainment date. These federally enforceable measures were not accounted for in GAEPD's modeling and are therefore excess emission reductions.

The commenter believes that Georgia's Offset Rule is not being implemented in such a way as to provide for zero growth.

The facility in question is one of a group of electric generating utilities that are subject to a special 7-plant average emissions limit. A revised application from the facility dated December 21, 2001, proposed an overall ton per ozone season limit for all of the companies' facilities subject to the 7-plant average. These limits will be placed in the facility's permits. Total emissions for the seven plants will not increase, and in fact, due to the early reductions and offset credit, will decrease. It is possible that some individual units may experience an increase in emissions, and hypothetically, these units could be located in the Atlanta non-attainment area. It is also possible that the units in the nonattainment area could be the ones experiencing the decreases in emissions.

EPD's assumption of zero growth is reasonable, given that (1) overall emissions for the seven plants will decrease; (2) exact locations of the decreases and increases were unknown at the time of the SIP demonstration and are still unknown today; (3) emissions from 2003 to 2004 for counties outside the non-attainment were calculated to reflect growth but may, due to the 7-plant limit mentioned above, experience a decrease in emissions; and (4) zero-growth in the 13-county non-attainment area was assumed only between 2003 and 2004. In fact, emissions were grown from 1999 to 2003, a period where zero-growth is expected due to the offset rule, making the assumption of zero growth a very conservative one.

In the future, Georgia EPD will continue to implement its Offset Rule in a manner that no leakage will occur, resulting in zero-growth or a decrease in emissions.

ARTBA supports approval of the attainment demonstration for the Atlanta area because approval is the only reasonable action.

EPA agrees with the commenter.

Reclassification to severe nonattainment would not shorten the time for meeting Atlanta's air quality goals. In fact, it would extend the time for compliance to at least 2005. Regardless of whether EPA grants an extension pursuant to the downwind extension policy, EPA is prohibited from reclassifying the Atlanta area under Subpart 2 of the federal CAA. Under 42 U.S.C. 7509(c), an area can be reclassified only if EPA makes a formal finding “[w]ithin 6 months following the applicable attainment date” that the area failed to attain the ozone NAAQS. EPA did not make such a determination within six months of the nominal 1999 attainment deadline for the Atlanta area, and thus is now prohibited from doing so.

EPA is not reclassifying the area at this time, but rather is granting an extension of the area's attainment date to November 2004. EPA agrees that reclassification must be based on a notice and comment rulemaking. See D.C. Circuit Slip opinion Sierra Club v. Whitman No. 01-5123 and 015299 April 5, 2002, Slip Opinion (D.C. Cir). EPA has not yet issued a rulemaking containing a final determination of whether Atlanta attained by its attainment date. EPA does not agree, however, that missing a mandatory deadline means that EPA loses the power to act to discharge the duty to which the deadline applied. EPA retains the power to act to discharge the duty after the deadline has passed. Southwestern Pennsylvania Growth Alliance v. Browner , 121 F.3d 106, 113-114 (3d Cir. 1997). (EPA does not lose power to perform mandatory duty to act on redesignation request after 18-month statutory period has elapsed).

As noted in the response to comments 2-4, no bump-up by operation of law occurred due to any purported failure to submit the appropriate milestone compliance demonstration.

ARTBA recognizes that interest groups have threatened legal challenges of both the EPA extension policy and the proposed attainment demonstration for Atlanta. EPA should not allow the threat of legal challenge to cloud its judgment in approving this attainment demonstration. The practical effect of a legal challenge for the Atlanta transportation planners would be for the current transportation plan (at the time of invalidation) to remain in place because legal challenges would not have a retroactive effect. In the alternative, a disapproval and reclassification of the nonattainment area by EPA might cause air quality goals and transportation plans to be delayed because it would force Atlanta to develop a new state implementation plan and may require current transportation plans to shift to achieve conformity.

EPA agrees with many of the comments made by the Commenters that correctly point out certain provisions in the conformity rule. However, several of the comments are taken out of context. The commenter notes that 40 C.F.R. § 93.118(e)(3) and proposed rule changes (see 66 FR 50954 and 50958, October 5, 2001) provide any finding of conformity for transportation plans or transportation improvement programs (TIPs) to a motor vehicle emission budget (MVEB), prior to an invalidation of a state implementation plan (SIP) containing that MVEB, would continue to be valid. The commenter further states, “As a policy matter, it is common sense for projects in an approved transportation improvement program to proceed, even when a SIP is subsequently invalidated, because those projects have been deemed by the state and regional planner to be essential in improving air quality, reducing congestion, improving mobility and access, and/or preventing traffic fatalities.” This statement, however, is not correct. This rule provision recognizes that at some point the planning process must proceed, and recognizing that at the time the transportation plan and TIP were developed and approved, the latest applicable MVEB was used. However, the SIP containing the budget is subsequently disapproved (without a protective finding on the budget), only those projects in the first three years of the TIP, exempt and Transportation Control Measures in approved SIPs can proceed. This provision allows for recognition of the cost and resources expended by the transportation planners to this point in the process. Contrary to the commenter's statement, it does not imply that even if a SIP becomes invalid that the reason projects can proceed is because they were deemed to be essential by the state and regional planner.

The commenter also states, “In the case of Atlanta, its conformity determination would remain valid, if approved based on the January 8, 2002, adequacy determination or based on approval of the attainment demonstration at issue in the current rulemaking, regardless of any future SIP withdrawal or invalidation, until conformity would have otherwise lapsed of due course pursuant to EPA regulations at 40 C.F.R. § 93.104.” The current 2025 transportation plan and FY 2002-04 TIP for Atlanta, Georgia were found in conformity to the 15 percent and 9 percent rate of progress SIP MVEBs. These were the latest approved budgets in the SIP at the time of transportation plan and TIP approval. The January 8, 2002, finding of adequacy is on the 1-hour attainment SIP. Presently, no finding of conformity has been made for this or any other attainment MVEB. While the conformity rule requires 18 months to redetermine conformity to the budget found adequate on January 8, 2002, this action has not yet occurred. The date by which the conformity redetermination for the new budget must be completed for the transportation plan and TIP would likely be 18 months from the date of the finding of adequacy on the budget. (EPA's proposed rule change, dated October 5, 1999, would start the 18-month trigger on the date of adequacy for a new SIP budget versus the date of a SIP submittal as currently required. Per this rule, a new SIP budget refers to an initial SIP submission for a given CAA requirement.)

Another statement made by the commenter refers directly to the 18-month clock to re-determine conformity. It stated (reference to the October 28, 1999, SIP and its budget), “Although this motor vehicle emissions budget was later withdrawn, conformity was determined within the required 18-month period. Any subsequent adequacy determination on a resubmitted budget would not be an initial SIP submission and would not trigger the 18-month “conformity clock'.” This statement is incorrect. First, no finding of conformity to the 1999 SIP budget was ever made. In addition, the purpose of the 1999 SIP submission was to demonstrate attainment by 2003. Because of a court decision regarding the nitrogen oxides SIP, the state developed and submitted a new SIP for the purpose of demonstrating attainment by 2004. Since conformity was never done to the 2003 attainment SIP and that SIP has since been replaced, the 2004 attainment SIP is considered an initial submission. Therefore, it started a new 18-month conformity schedule. When the 1999 SIP was withdrawn, the 18-month conformity schedule for that SIP was no longer applicable. When the new SIP was submitted in July 2001, a new 18-month conformity schedule began. Therefore, under the 18-month schedule for redetermining conformity to the MVEB in the July 2001 SIP (with an attainment date of 2004), the deadline is likely to be July 2003. (EPA's proposed rule change, dated October 5, 1999, would start the 18-month trigger on the date of adequacy for a new SIP budget versus the date of a SIP submittal. Should this rule be finalized, conformity will be required to the budget found adequate in January 2002 by July 2003.) Currently, a transportation plan is under development, with a schedule for adoption and conformity redetermination in late 2002. This action is intended to satisfy the 18-month conformity schedule for redetermining conformity to the most recent applicable SIP MVEB.

EPA does agree that the area should attain as expeditiously as practicable. However, EPA believes this can best be achieved by implementation of the submitted control strategy. Therefore, EPA intends to approve the 1-hour ozone attainment demonstration for the Atlanta area.

There is no evidence in the submittal that the Governor has endorsed the SIP as required by 40 CFR 93.118(e)(4)(i).

According to 40 CFR 93.118(e)(4), EPA will not find a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied:

(i) The submitted control strategy implementation plan revision or maintenance plan was endorsed by the Governor (or his designee) and was subject to a State public hearing.

The Georgia Air Quality Act, Article 1, Section 12-9-6 “Powers and Duties of Director as to Air Quality Generally” designates the Director of the Environmental Protection Division of the Department of Natural Resources of the State of Georgia to exercise general supervision over the administration and enforcement of this article and all rules, regulations, and orders promulgated under this article. The motor vehicle emissions budget was the subject of public hearings held on July 7, 1999, and September 8, 1999. The October 1999 State Implementation Plan (SIP) and subsequent supplemental SIP revisions were submitted via letter from Mr. Harold F. Reheis, the current Director of the Georgia Department of Natural Resources.

Commenter believes Georgia should increase information to the public on air quality. Commenter believes that year round data collection and more public information in a consumer friendly index format (e.g. UV index or other meteorological information) would help all citizens understand their risk and the dimensions of the problems.

Through the Partnership for a SMOG-Free Georgia, one of the control measures, the public is provided information on air quality. The Georgia Department of Natural Resources' Environmental Protection Division (EPD) issues ozone forecasts throughout the ozone season, i.e., SMOG Alerts. In addition to the SMOG Alerts, the EPD provides, to the public, real-time air quality concentration data throughout the year for several measured ambient air pollutants through their internet web site ( GOTOBUTTON BM_1_ http://www.air.dnr.state.ga.us/ ). Because ground level ozone is a health concern in Georgia only during the ozone season (March 1 through October 31), the EPA does not require EPD to monitor or provide public information for ozone year round.

Air emissions associated with the Norfolk Southern Railway Company's proposed intermodal transportation facility are likely to cause or contribute to continuing violations of the ozone standard and other air quality standards in and around Cobb County and to pose threats to public health. Regulations addressing this facility should be included in the SIP submittal.

Specific emissions from the Norfolk Southern Railway Company's proposed facility may not have been included in the ozone modeling demonstration for the Atlanta nonattainment area. However, they were included in the projected emissions for Cobb County for this source category. EPA accepts the modeling and supporting weight of evidence analysis to identify additional controls as being representative of a demonstration to achieve the attainment of the 1-hour ozone standard. Regulations were developed for the controls used in this demonstration. It does not appear that specific controls at this facility were needed to achieve attainment of the 1-hour ozone NAAQS for the Atlanta nonattainment area. As such, regulations addressing this facility are not included in the SIP.

If the air emissions associated with the railroad facility were not consider in establishing the mobile source budget, future operation of the facility may render the budget inadequate to demonstrate attainment.

Railroad emissions are not part of the motor vehicle emissions budget for onroad motor vehicles but rather are included in the inventory for nonroad motor vehicles. Railroad facility emissions were used in the development of Georgia's attainment demonstration and nonroad mobile source emissions inventory. All known future activity from railroads/yards were accounted for in the inventory development. Georgia's Nonroad mobile source inventory for 1990 was developed using an EPA Nonroad database developed for all nonattainment areas. All emission inventories for other years that were used in the attainment modeling demonstration were developed using Bureau of Economic Analysis (BEA) data. The database was developed in accordance with EPA's guidance document entitled “Procedures for Emission Inventory Preparation Volume IV: Mobile Source.” Chapter 6 illustrates how emissions from locomotives are to be developed. Railroads are separated into three classes based upon size: Class I, Class II and Class III. Locomotives within each of the Classes can perform two different types of operations: line haul and yard (or switch). Furthermore, it is EPA's understanding that Georgia took into consideration the Austell Report regarding the proposed CSX rail yard move. This report shows that emissions from this move will decrease.

Letter to Georgia EPD requesting that proposed Norfolk Southern intermodal facility not be constructed or operated absent adoption of regulations and/or permit conditions to ensure necessary emission controls. Supporting documentation is included.

The Norfolk Southern intermodal facility is a minor source in Cobb County. Permits are not required for these minor sources in Georgia.

EPD should require non-road diesel engines to use the proposed Georgia Diesel Fuel (CA style).

In the October 1999 SIP submittal, the GAEPD listed several control measures, including low sulfur diesel, that would be studied to ensure that the 1-hour ozone standard will be met and to make progress towards attaining the 8-hour ozone standard. GAEPD investigated the potential for this type of control and met with the Georgia Petroleum Council to discuss this option, as well as the option for implementing a low sulfur/low Reid Vapor pressure gasoline. Since that time, GAEPD has implemented a control program requiring the low sulfur/low Reid Vapor gasoline, and is actively engaged in EPA's voluntary Heavy Duty Diesel Retrofit program. Through this program, GAEPD is encouraging the use of low sulfur diesel in combination with retrofitted diesel engines for construction equipment at the airport, auxiliary powered units, school bus fleets and so forth. GAEPD is working in partnership with engine manufacturers, municipalities, the City of Atlanta, EPA, and several refineries on this effort. GAEPD abandoned its efforts to mandate low sulfur diesel when EPA promulgated its Heavy Duty Diesel rule on January 18, 2001. This rule establishes a comprehensive national control program that will regulate the heavy-duty vehicle and its fuel as a single system. As part of this program, new emission standards will begin to take effect in model year 2007 and will apply to heavy-duty highway engines and vehicles. Additionally, this program requires a 97 percent reduction for the level of sulfur in highway diesel fuel by mid-2006.

Under the extension policy the state must have adopted all applicable local measures required under the area's current classification and any additional measures necessary to demonstrate attainment. The commenter does not believe all of Georgia's additional measures have been adopted.

On January 31, 2000, and July 31, 2000, the Georgia Environmental Protection Division (GAEPD) submitted revisions to the October 28, 1999, 1-hour ozone attainment demonstration for the Atlanta serious ozone nonattainment area. The purpose of these revisions was to address the level of additional reductions for attainment (i.e., the shortfall) and to identify the controls to achieve the additional reductions. GA EPD used EPA's 1999 guidance to identify the additional reduction in NO X and VOC needed for attainment. The additional control measures adopted represent the open burning ban for industrial, residential, commercial, prescribed and slash purposes for attainment counties, additional electric generating units controls for utilities, and a new combustion turbine regulation. GA EPD has adopted all applicable local measures required for a serious 1-hour ozone nonattainment areas and other additional control measures necessary to demonstrate attainment per the EPA attainment date extension policy and modeling guidance. A final rule on the regulations for the Atlanta attainment strategy was published in the Federal Register on July 10, 2001, (66 FR 35906) and became effective on August 9, 2001. Please see the Federal Register actions published on December 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972) for further information.

It is not clear that Georgia is “affected by transport” of ozone precursors in a manner contemplated by the extension policy. Significant effects are not apparent from EPA's Finding of Significant Contribution & Rulemaking for Certain States in the Ozone Transport Assessment Group for Purposes of Reducing Transport of Ozone, 62 FR 60318 (November 7, 1997). Explain specifically the extent to which upwind sources of air pollution are “significant” and the specific basis for EPA's conclusion.

EPA provided all the evidence and supporting documentation that Atlanta is significantly affected by transport from upwind states, in the manner contemplated by the extension policy, in the nitrogen oxides (NO X ) State Implementation Plan (SIP) Call rulemaking (63 FR 57356, Oct. 27, 1998). This rule was upheld by the court in Michigan v. EPA , 213 F. 3d 663 (D.C. Cir. 2000).

The SIP for bringing the Atlanta area into compliance with the 1-hour ozone National Ambient Air Quality Standards (NAAQS) relies upon reductions from implementation of the NO X SIP Call implemented in upwind states. Appendix G of the EPA NO X SIP TSD referenced above, “Evaluation of Contributions—Tables of Metrics, 1-Hour CAMX: Upwind States to Downwind States,” page G-6, gives average contributions to an Atlanta area exceedance as follows: Alabama, 8 percent; Kentucky, 1 percent; North Carolina, 1 percent; South Carolina, 1 percent; and Tennessee, 4 percent for a total contribution of 15 percent. The State calculated the effect on a monitored exceedance occurring at 125 ppb, the result being a contribution of 18.6 ppb (125 ppb × 15 percent). The implementation of the NO X SIP Call in 2004 would reduce the contribution to ozone exceedances by 18.6 ppb. Thus, EPA has indicated that Georgia is affected by upwind transport.

Today, EPA is granting final approval to the 1-hour ozone attainment demonstration for the Atlanta area as submitted on July 17, 2001, the RACM analysis, commitment to perform an early attainment assessment, contingency measures, the 2004 MVEB, and the PSG program. Additionally, EPA is extending the attainment date to November 15, 2004. The Atlanta area will remain a serious nonattainment area.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On September 29, 1998, the State submitted a revision to the SIP, which EPA disapproved in part on September 13, 2000. (65 FR 55193). EPA's disapproval action started an 18-month clock 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 a revised rule on February 20, 2002. EPA has taken direct final action on this submittal pursuant to its modified direct final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules section of today's Federal Register , EPA has issued a direct final full approval of the State of California's submittal of its revision to the SIP. In addition, in the Proposed Rules section of today's Federal Register , EPA has proposed full approval of the State's submittal.

Based on the proposed approval set forth in today's Federal Register , EPA believes that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, EPA is taking this final rulemaking action, effective on publication, finding that the State has corrected the deficiencies. However, EPA is 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 EPA's proposed full approval of the State's submittal, EPA determines that the State's submittal is not fully approvable and this final action was inappropriate, EPA will either propose or take final action finding that the State has not corrected the original disapproval deficiencies. As appropriate, EPA will also issue an interim final determination or a final determination that the deficiencies have been corrected.

This action does not stop the sanctions clock that started for this area on October 13, 2000. However, this action will defer the imposition of offsets and highway sanctions. If EPA's 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 EPA must withdraw the direct final action based on adverse comments and EPA subsequently determines that the State, in fact, did not correct the disapproval deficiencies, EPA will also determine that the State did not correct the deficiencies and the sanctions consequences described in the sanctions rule will apply. See 40 CFR 52.31.

EPA is taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of offset and highway sanctions will be deferred until EPA's direct final action fully approving the State's submittal becomes effective or until EPA takes action proposing or finally disapproving in whole or part the State submittal. If EPA's 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 EPA has preliminarily determined that the State has an approvable plan, relief from sanctions should be provided as quickly as possible. Therefore, EPA is 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).

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

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.

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

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

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, because it merely acts on 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

On March 15, 2002, this rule 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 a version of Rule 4653 into the SIP on September 13, 2000. The SJVUAPCD adopted revisions to the SIP-approved version on December 14, 2000 and December 20, 2001. CARB submitted those revisions to us on March 14, 2001 and February 20, 2002. While we can act on only the most recently submitted version, we have reviewed materials provided with the previous submittal.

The rule revision was submitted to correct deficiencies identified by us in our September 13, 2000 rulemaking. The TSD has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The SJVUAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 4653 must fulfill RACT.

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

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

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

3. The California Air Resources Board's Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Adhesives and Sealants, dated December 1998.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by June 6, 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 July 8, 2002. This will incorporate this rule into the federally enforceable SIP and permanently terminate all sanctions and Federal Implementation Plan (FIP) clocks associated with EPA's September 13, 2000 limited disapproval of a previous version of this rule.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of this local agency VOC rule.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

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.

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

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

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, because it merely acts on 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On November 21, 2001, the South Carolina Department of Health and Environmental Control (SCDHEC) submitted revisions to the South Carolina SIP. These revisions include the amending of volatile organic compounds (VOC's), prevention of significant deterioration (PSD), and other miscellaneous regulations. A description of each revision submitted is listed below.

.1 Section I, Definition 94. The definition of VOC was revised to include volatile methyl silicates.

.1 Section II, Permit Requirements; Part B(1). This section was revised to clarify when the written request for an operating permit is due.

.5 Standard 1, Emissions From Fuel Burning Operations; Section I.A. This section was revised to clarify the opacity requirements for existing sources. Section I.B. This section was revised to clarify the opacity requirements for new sources.

.5 Standard 4 Emissions from Process Industries; Section XI, and .5 Standard 5, Volatile Organic Compounds; Section I, Part C. These sections were revised to update a reference to the Clean Air Act.

.5 Standard 5 Volatile Organic Compounds Section I, Part A. This section was amended to correct the definition of “petroleum liquids.” Section II, Part A(2). This section was amended to add language to aid in the clarity of the regulation.

.5 Standard 7. Prevention of Significant Deterioration. This regulation was replaced in whole to adopt a new regulation that incorporates the Federal Amendments.

The following sections were amended to correct minor typographical errors—

EPA is approving the aforementioned changes to the SIP because the revisions are consistent with Clean Air Act and EPA regulatory requirements. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective July 8, 2002 without further notice unless the Agency receives adverse comments by June 6, 2002.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on July 8, 2002 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Section 102(c) of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq. , gives the Administrator of EPA the authority to designate sites where ocean disposal may be permitted. On December 23, 1986, the Administrator delegated the authority to the Regional Administrator of the Region in which sites are located. The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR chapter I, subchapter H, § 228.11) state that use of disposal sites may be modified.

Two ODMDS's were ultimately designated for Charleston in 1987. One was a 12-square mile site for deepening material. The second site was 3-square miles and was placed within the 12-square mile site. During the 1980's, additional benthic and sedimentological studies were conducted by the South Carolina Department of Natural Resources (SCDNR). In 1987, live bottoms were identified in the western portion of the 12-square mile site. Concerns regarding impacts to the living resources at the ODMDS encouraged EPA to place a restriction on the use of the 12-square mile site. The Final Rule regarding this restriction was published in the Federal Register March 5, 1991 stating, “Disposal shall be limited to dredged material from the Charleston Harbor area. All dredged material, except entrance channel material, shall be limited to that part of the site east of the line between coordinates 32°39′04″ N, 79°44′25″ W and 32°37′24″ N, 79°45′30″ W unless the materials can be shown by sufficient testing to contain 10% or less of fine material (grain size of less than 0.074mm) by weight and shown to be suitable for ocean disposal.” This bisecting line was an immediate effort by EPA to protect live bottom resources initially reported by fishermen. The line was set with limited knowledge of the exact location and extent of those resources, and was set in a location that was believed to be as protective as possible at that time.

During this same time frame, an interagency group (EPA, SCDNR, COE and State Ports Authority) began working together to develop a monitoring and management plan (MMP) for the ODMDS. As part of this MMP process, construction of an L-shaped berm was developed approximately midway within the ODMDS. The COE began construction of the L-shaped berm using consolidated material from the last (42-foot) deepening project. The berm was evident on 1993 bathymetry. Also, as part of the MMP, the interagency group began looking for an area within the ODMDS for disposal of dredged material which would have the least impacts on the live bottom resources located in the western region of the site. A 4-square mile area (disposal box) was identified within the eastern half of the 12-square mile designated ODMDS and placed in position with the L-shaped berm as part of the western boundary. This location was approved by all the agencies involved, and placed where it would impact minimal reef habitat. At that time, the bisecting line should have been moved, but due to an oversight, it was not.

In 1995, EPA de-designated the smaller 3-square mile site and modified the larger site to allow for continued disposal of all material, not just deepening material. However, the COE agreed not to place any material outside of the 4-square mile disposal box. During the 1999-2000 (deepening project) dredging, a number of unauthorized dumps occurred to the west of the 4-square mile site. To date, studies indicate that some fine-grained material is present to the west of the 4-square mile site. It is unknown at this time whether the disposal material is moving from the ODMDS over the berms, from the berms, is part of the unauthorized dumps that occurred in 1999 and 2000, whether it is from the dispersion of the material during disposal activities at the site, or whether it is some combination of these four possibilities. Subsequent investigation and studies conducted by SCDNR to date have not identified adverse impacts at index reef sites being monitored. Other samples of the sand bottom benthic communities in areas that now have muddy sediments are still being processed.

The proposed rule for this action was published in the Federal Register on October 10, 2001 (66 FR 51628). Only one letter was received during the 45 day comment period and was supportive of this action.

EPA has voluntarily committed to prepare Environmental Impact Statements (EIS) in connection with the designation of ocean disposal sites (39 FR 16186 (May 7, 1974)). The need for an EIS in the case of modifications is addressed in 39 FR 37420 (October 21, 1974), section 1(a)(4). If the change is judged sufficiently substantial by the responsible official, an EIS is needed.

The continued use of the Charleston ODMDS is vital to the management goals of the Plan. EPA believes these changes do not warrant the preparation of an Environmental Impact Statement (EIS).

EPA's primary concern is to provide an environmentally acceptable ocean disposal site for Charleston Harbor area dredging projects on a continued basis.

The site modification for the Charleston Harbor Deepening Project ODMDS is the removal of the line that restricts disposal of fine-grained material and the addition of four corner coordinates (4 square-mile disposal box) that will define where all dredged material must be placed within the ODMDS. In addition, the site's official name is being shortened to the Charleston ODMDS.

Under the Regulatory Flexibility Act, EPA is required to perform a Regulatory Flexibility Analysis for all rules that may have a significant impact on a substantial number of small entities. EPA has determined that this action will not have a significant impact on small entities since the modification will only have the effect of providing an environmentally acceptable disposal option for dredged material on a continued basis. Consequently, this Rule does not necessitate preparation of a Regulatory Flexibility Analysis.

Under Executive Order 12866, EPA must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. As described elsewhere in this preamble, today's final rule would only have the effect of providing a continual use of an ocean disposal site pursuant to section 102(c) of MPRSA. Thus, Executive Order 13175 does not apply to this rule.

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

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because EPA does not have any reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As described elsewhere in this preamble, today's final rule would only have the effect of providing a continual use of an ocean disposal site pursuant to section 102(c) of MPRSA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As described elsewhere in this preamble, today's final rule would only have the effect of providing a continual use of an ocean disposal site pursuant to section 102(c) of MPRSA. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply, EPA did consult with State officials in developing this rule and no concerns were raised.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective June 6, 2002.

This Final Rule does not contain any information collection requirements subject to Office of Management and Budget review under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

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 Utah's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Utah Final authorization to operate its hazardous waste program with the changes described in the authorization application. Utah has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian Country, and for carrying out the aspects of the RCRA program described in its revised program 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 requirements and prohibitions in Utah, including issuing permits, until the State is granted authorization to do so.

This decision means that a facility in Utah subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Utah 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 the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Utah 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. We are providing an opportunity for the public to 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 the State program 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 the State 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 the State hazardous waste program, we will 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.

Utah initially received Final Authorization on October 10, 1984, effective October 24, 1984 (49 FR 39683) to implement its base hazardous waste management program. Utah received authorization for revisions to its program on February 21, 1989 (54 FR 7417), effective March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 (58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), effective July 21, 1997; January 13, 1999 (64 FR 02144), effective March 15, 1999; and October 16, 2000 (65 FR 61109), effective January 16, 2001.

On April 4, 2000, Utah submitted a final complete program revision application, seeking authorization of their 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 Utah's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Utah Final authorization for the following program changes (the Federal Citation followed by the analog from the Utah Administrative Code (R315), revised September 20, 2001): Clarification of Standards for Hazardous Waste LDR Treatment Variances [62 FR 64504, 12/05/97] (Checklist 162)/R315-13-1; Organic Air Emission Standards for Tanks, Surface Impoundments, & Containers [62 FR 64636, 12/08/97] (Checklist 163)/R315-3-2.5(b)(5); R315-7-9.6(b); R315-7-12.4; R315-7-26; R315-7-27; R315-7-30; R315-50-17; R315-8-2.6(b)(4); R315-8-5.3; R315-817, R315-8-18; R315-8-22; Kraft Mill Steam Stripper Condensate Exclusion [63 FR 18504, 04/15/98] (Checklist 164)/R315-2-4(a)(15); Land Disposal Restrictions Phase IV—Treatment Standards for Metal Wastes & Mineral Processing Wastes [63 FR 28556, 05/26/98] (Checklist 167A)/R315-13-1; Land Disposal Restrictions Phase IV—Hazardous Soils Treatment Standards & Exclusions [63 FR 28556, 05/26/98] (Checklist 167B)/R315-13-1; Land Disposal Restrictions Phase IV—Corrections [63 FR 28556, 05/26/98] (Checklist 167C)/R315-13-1; R315-13-1; Mineral Processing Secondary Materials Exclusion [63 FR 28556, 05/26/98] (Checklist 167D)/R315-2-2(c)(1)(i); R315-2-2(c)(3); R315-2-2(e)(1)(iii); R315-2-4(a)(16); Bevill Exclusion Revisions & Clarifications [63 FR 28556, 05/26/98] (Checklist 167E)/R315-2-3(a)(2); R315-2-4(b)(7); Exclusion of Recycled Wood Preserving Wastewaters [63 FR 28556, 05/26/98] (Checklist 167F)/R315-2-4(a)(9); Hazardous Waste Combustors Revised Standards [63 FR 33782, 06/19/98] (Checklist 168)/R315-2-4(a)(17); R315-2-26; R315-3-4.3; Petroleum Refining Process Wastes [63 FR 42110, 08/06/98] (Checklist 169)/R315-2-3(a)(2)(iv)(C); R315-2-3(c)(2)(ii)(B); 2-3(c)(2)(ii)(E); R315-2-4(a)(12); R315-2-4(a)(18); R315-2-4(a)(19); R315-2-6; R315-210; R315-13-1; R315-14-7; R315-50-9; Land Disposal Restrictions Phase IV—Zinc Micronutrient Fertilizers, Amendment [63 FR 46332, 08/31/98] (Checklist 170)/R315-13-1; Land Disposal Restrictions Phase IV—Extension of Compliance Date for Characteristic Slags [63 FR 48124, 09/09/98] (Checklist 172)/R315-13-1; Land Disposal Restrictions; Treatment Standards for Spent Potliners from Primary Aluminum Reduction (K088); Final Rule [63 FR 51254, 09/24/98] (Checklist 173)/R315-13-1; Post-Closure Permit Requirement & Closure Process [63 FR 56710, 10/22/98] (Checklist 174)/R315-3-1.1; R315-3-2.5(a); R315-3-2.19; R315-7-13.1; R315-7-14; R315-7-15; R315-8-6.1; R315-8-7; R315-8-8; Universal Waste Rule—Technical Amendments [63 FR 71225] (Checklist 176)/R315-14-6; R315-16-1.9(j); Organic Air Emission Standards: Clarification and Technical Amendments [64 FR 03382] (Checklist 177)/R315-5-3.34; R315-7-30; R315-8-17; R315-8-22; Petroleum Refining Process Wastes-Leachate Exemption [64 FR 06806] (Checklist 178)/R315-2-4(b)(15).

In the Federal Register on October 16, 2000 [65 FR 61109, effective January 16, 2001], we listed several places where we consider the State requirements to be more stringent than the Federal requirements. R315-5-10 was inadvertently left off the list of citations where the State requires notification also be given to the Utah Division of Solid and Hazardous Waste, as well as, the Federal entities. These requirements are part of Utah's authorized program and are Federally enforceable.

Utah 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 Utah has equivalent instruments in place. We will not issue any new permits or new portions of permits for the provisions listed in the Item G after the effective date of this authorization. EPA has previously suspended issuance of permits for other provisions on the effective date of Utah's Final Authorization for the RCRA base program and each of the revisions listed at Item F. EPA will continue to implement and issue permits for HSWA requirements for which Utah is not yet authorized.

This program revision does not extend to “Indian Country” as defined in 18 U.S.C. Section 1151. Indian Country includes lands within the exterior boundaries of the following Indian reservations located within or abutting the State of Utah:

With respect to the Uintah and Ouray Indian Reservation, Federal courts have determined that certain lands within the exterior boundaries of the Reservation do not constitute Indian Country. This State program revision approval will extend to those lands which the courts have determined are not Indian Country.

In excluding Indian Country from the scope of this program revision, EPA is not making a determination that the State either has adequate jurisdiction or lacks jurisdiction over sources in Indian Country. Should the State of Utah choose to seek program authorization within Indian Country, it may do so without prejudice. Before EPA would approve the State's program for any portion of Indian Country, EPA would have to be satisfied that the State has authority, either pursuant to explicit Congressional authorization or applicable principles of Federal Indian law, to enforce its laws against existing and potential pollution sources within any geographical area for which it seeks program approval and that such approval would constitute sound administrative practice.

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 part 272. We reserve the amendment of 40 CFR part 272, subpart TT for the codification of Utah's program 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), and 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 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 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 it does not make decisions based on environmental health or safety risks.

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, 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. EPA will submit a report containing this document 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 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 July 8, 2002.

A. Background

Item IV of FAC 01-01 amended various FAR subparts and clauses to implement recent statutory and regulatory changes relating to veterans' employment opportunities and reporting. Item II of FAC 01-02 amended various FAR subparts to implement Executive Order 13123 of June 3, 1999, Greening the Government through Efficient Energy Management. Item III of FAC 01-02 amended various FAR subparts and clauses to reflect changes to the Office of Management and Budget (OMB) prompt payment requirements and clarify existing FAR prompt payment coverage. Item V of FAC 0106 amended various FAR subpart to rewrite procurement integrity coverage in plan language. This final rule makes changes to NFS parts 1803, 1811, 1822, 1823, and 1832 necessary to conform to the changes in FAC's 01-01,01-02, and 01-06. Additional changes dealing with NASA internal and administrative matters included in this rule clarify the approval authority for letter contracts and that “instrument” means the award document when referring to contracts, grants, cooperative agreement, or other agreement. Changes are made to subparts 1806.3 and 1819.70 to delete text duplicative of the FAR. Changes are made to clauses in part 1852 to identify optional (though preferable) forms for submission of information about technology innovations under NASA contracts and to identify the web site where these forms are available. Editorial changes are made throughout the NFS to reflect title changes. Lastly, technical amendments are made to subpart 1804.74 and part 1852 to update url listings. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This final rule is not a major rule under 5 U.S.C. 804.

NASA 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 it does not impose any new requirements.

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose any recordkeeping or information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Annual groundfish specifications and management measures are initially developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS. The specifications and management measures for the current fishing year (January 1-December 31, 2002) were initially published in the Federal Register as an emergency rule for January 1 - February 28, 2002 (67 FR 1540, January 11, 2002), and as a proposed rule for all of 2002 (67 FR 1555, January 11, 2002), then finalized effective March 1, 2002 (67 FR 10490, March 7, 2002). The emergency rule was subsequently amended at 67 FR 3820, January 28, 2002, and at 67 FR 7289, February 19, 2002. The final rule was subsequently amended at 67 FR 15338, April 1, 2002.

The Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773k) (Halibut Act) and its implementing regulations at 50 CFR part 300, subpart E, regulate fishing for Pacific Halibut in U.S. Convention waters. The Halibut Act also authorizes the Pacific Council to develop regulations governing the Pacific halibut catch in waters off of Washington, Oregon, and California that are in addition to, but not in conflict with, regulations of the International Pacific Halibut Commission (IPHC). Accordingly, the Pacific Council has developed, and NMFS has approved, a catch sharing plan (CSP) to allocate the total allowable catch (TAC) of Pacific halibut between treaty Indian and non-Indian harvesters, and among non-Indian commercial and sport fisheries in IPHC statistical Area 2A (off Washington, Oregon, and California). The CSP, as implemented at 50 CFR part 300, provides for retention of halibut landed incidentally in the limited entry, longline primary sablefish fishery north of Pt. Chehalis, WA (46°53′18″ N. lat.) in years when the Area 2A TAC is above 900,000 lb (408.2 mt). Because the Area 2A TAC is above 900,000 lb (408.2 mt) in 2002, NMFS is establishing an allowance for incidental halibut retention in the primary sablefish fishery in 2002.

The following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Tribes and the States of Washington, Oregon, and California, at its April 8-12, 2002, meeting in Portland, OR. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to the trip limits will be made as necessary to stay within the OYs and allocations announced in the 2002 specifications and management measures for the groundfish fishery, published in the Federal Register at 67 FR 10490 (March 7, 2002), as amended at 67 FR 15338 (April 1, 2002).

Darkblotched rockfish, an overfished species found on the continental slope, is of particular concern for, and is harvested by, several sectors of the groundfish fishery discussed in this inseason action. To protect darkblotched rockfish, NMFS and the Pacific Council previously restricted trip limits for continental slope fisheries north of 40°10′ N. lat. The restricted limits north of 40°10′ N. lat. were intended to reduce harvest of species that co-occur with darkblotched rockfish in order to reduce the incidental harvest of darkblotched rockfish in areas where they tend to occur. However, recent data have shown that darkblotched rockfish may also occur in higher concentrations than previously believed south of 40°10′ N. lat., especially between 40°10′ N. lat. and 36° N. lat. (Monterey management area).

For the 2002 specifications and management measures, NMFS introduced a new bycatch model for estimating the rates at which certain overfished species, including darkblotched rockfish, co-occur as bycatch in fisheries targeting healthier stocks. For the purposes of this inseason action, “bycatch” is used to describe a species’ co-occurrence with a target species, regardless of whether the first species is retained (landed, sold, or otherwise used) or discarded. A re-evaluation of the bycatch model has shown that darkblotched rockfish landings information from the waters between 40°10′ N. lat. and 36° N. lat. (Monterey management area) may not have been accurate in the original bycatch model, resulting in co-occurrence rates used in the bycatch model for darkblotched rockfish being lower than what may have actually occurred in target fisheries in the Monterey area. NMFS and the Pacific Council must manage the coastwide fisheries to minimize opportunities for incidental darkblotched rockfish catch so as to not exceed the darkblotched rockfish OY, which is set at a level that is intended to rebuild the stock.

For these reasons, the Pacific Council recommended reducing slope rockfish trip limits in this management area, starting May 1, 2002. In the coming months, the Pacific Council’s Groundfish Management Team (GMT) will review fish ticket data to better evaluate landings in the Monterey area and to determine whether further adjustments are needed to the bycatch model and to trip limits to protect darkblotched rockfish. NMFS and the Pacific Council will recommend further changes at the June 2002 Council meeting, based on the GMT’s evaluation.

In addition, NMFS must account for an additional 2 mt of darkblotched rockfish, expected to be taken in research catches. Together, these situations have led NMFS and the Pacific Council to recommended further restrictions to protect darkblotched rockfish. After considerable deliberation on this issue, NMFS and the Pacific Council have recommended reductions in the DTS fisheries, minor slope rockfish fisheries, and splitnose rockfish fisheries in order to further restrict the bycatch of darkblotched rockfish.

During January-February of this year, landings of the DTS complex were 8 percent above projected levels. Due to concern about increased effort in the DTS fishery and its effects on darkblotched rockfish, an overfished species that co-occurs with the DTS complex, the Pacific Council recommended reducing trip limits for DTS north of 40°10′ N. lat. in order to reduce the incidental harvest of darkblotched rockfish. Although trip limits for the DTS fishery were scheduled to decrease in the winter to reduce darkblotched bycatch, further restrictions are necessary at this time to protect darkblotched rockfish. Reducing trip limits for the July-August period is expected to save roughly 6 mt of darkblotched rockfish, which should keep the darkblotched rockfish catch within the 2002 OY while allowing fisheries for co-occurring species to continue.

The lower 2002 whiting OY, implemented on April 15, 2002 (67 FR 18117), will most likely result in a shorter whiting season. This could cause effort to shift into the DTS fishery during the July-August period. Reducing trip limits in the northern DTS fishery during July-August will reduce the catch of darkblotched rockfish not accounted for in the bycatch model, and will also reduce the likelihood of effort shifting into the DTS fishery from the whiting fishery. In order to accommodate the desire by fishers and processors to maintain year-round fishing opportunities and to reduce the likelihood of a total continental slope fishery closure later in the year due to early attainment of the DTS OY and/or interception of darkblotched rockfish, the trip limits for the DTS fishery for July-August were cut roughly in half.

For the July-August period, the 2-month cumulative limits for the DTS trawl fishery occurring north of 40°10′ N. lat. will be reduced as follows: Dover sole will be reduced from 28,000 lb (12,700 kg) to 14,000 lb (6,350 kg), shortspine thornyhead will be reduced from 2,600 lb (1,179 kg) to 1,500 lb (680 kg), longspine thornyhead will be reduced from 3,000 lb (1,361 kg) to 1,500 lb (680 kg), and sablefish will be reduced from 6,000 lb (2,722 kg) to 3,000 lb (1,361 kg).

Splitnose rockfish and minor slope rockfish both co-occur with darkblotched rockfish, an overfished species, on the continental slope. In light of the new information for the darkblotched rockfish in the Monterey management area (between 40°10′ N. lat. and 36° N. lat.) previously discussed, the Pacific Council recommended trip limit reductions for splitnose rockfish and minor slope rockfish as a precautionary measure to reduce possible incidental catch of darkblotched rockfish until further information is available at the June Pacific Council meeting.

Trip limits for splitnose rockfish and minor slope rockfish remain unchanged south of 36° N. lat. (south of the Monterey management area) because incidental catch of darkblotched rockfish has remained low in this area. In order to avoid excessive effort concentration on splitnose and minor slope rockfish from vessels moving south to the Conception management area (south of 36° N. lat.) to access higher trip limits, this issue will also be revisited at the June Pacific Council meeting, when fish tickets become available, to identify reasonable thresholds for removals of splitnose and minor slope rockfish.

To apply the reductions equally across sectors, splitnose rockfish limits will be reduced for limited entry trawl and fixed gear between 40°10′ N. lat. and 36° N. lat. from 25,000 lb (11,340 kg) per 2 months to 5,000 lb (2,268 kg) per 2-month period from May-August. The open access limit for splitnose rockfish south of 40°10′ N. lat. remains 200 lb (91 kg) per month. Also for the May-August period, the limited entry trawl, limited entry fixed gear and open access limits for minor slope rockfish between 40o10' N. lat. and 36o N. lat. will each be reduced to 5,000 lb (2,268 kg) per 2-month period. Previously, minor slope rockfish limits for these sectors in the Monterey area were 50,000 lb (22,680 kg) per 2-months for limited entry trawl, 25,000 lb (11,340 kg) per 2-months for limited entry fixed gear, and 10,000 lb (4,536 kg) per 2-months for open access.

The best available information at the April Pacific Council meeting showed higher than projected landings in January-February for bocaccio, an overfished species that co-occurs with chilipepper rockfish. Estimated limited entry landings of bocaccio for January-February (the majority of which are from trawl gear) were 5 mt, above the projected catch of 1.3 mt. Although the January-February catch of bocaccio is higher than projected, the projected annual catch for 2002 (13.8 mt) was well below the 25 mt total catch harvest guideline for the limited entry fleet. Because fish ticket data are not yet available for the January-February period, it is not known what other species are being landed with bocaccio. However, previous examinations of rockfish compositions have shown that chilipepper rockfish is often landed along with bocaccio. Fish ticket data will be available and examined before the June Pacific Council meeting in San Francisco. If landings of bocaccio continue above the projected pace, further adjustments to harvest limits for bocaccio and co-occurring species will be recommended at that time.

Limited entry trawl cumulative limits for bocaccio are scheduled to increase from 600 lb (272 kg) per 2-month period to 1,000 lb (454 kg) per 2 months from May-October. The Pacific Council considered reducing this scheduled increase, but felt it was necessary to allow the scheduled increase to accommodate interception of bocaccio in other trawl fisheries.

Bocaccio is not a targeted species in limited entry trawl fisheries; thus, adjustments to target species that co-occur with bocaccio are the most effective way to minimize increased catch of bocaccio and bocaccio landings. NMFS expects that minimizing bocaccio interception in the coming years will be a continuing challenge as individuals from the robust 1999 year-class grow to a size that makes them available to the commercial fisheries. Thus, for the May-December period, the limited entry small footrope trawl limit for chilipepper rockfish south of 40°10′ N. lat. will be reduced from 7,500 lb (3,402 kg) per 2-month period to 4,000 lb (1,814 kg) per 2-month period.

A proposed rule for this action was published in the Federal Register on March 22, 2002, (67 FR 13303). The comment period closed on April 8, 2002.

The spiny dogfish fishery is managed under an FMP developed jointly by the Mid-Atlantic Fishery Management Council and the New England Fishery Management Council (Councils). The implementing regulations for the dogfish fishery are found at 50 CFR part 648, subpart L.

Pursuant to 50 CFR 648.230, the Administrator, Northeast Region, NMFS, (Regional Administrator) implements measures for the 2002 fishing year to assure that the target fishing mortality rate (F), as specified in the FMP, is not exceeded. The target F and management measures (i.e., semi-annual commercial quota and possession limits) are summarized below. Detailed background information regarding the development of the proposed specifications for the 2002 spiny dogfish fishery was provided in the preamble to the proposed rule (67 FR 13303, March 22, 2002) and is not repeated here. In addition to establishing the annual measures, this action makes a technical correction to the spiny dogfish regulations to indicate that the target F, F=0.03, extends through April 30, 2004. The current regulations mistakenly reference a target F, F=0.03, through April 30, 2003.

The FMP specifies a target F of 0.03 for 2002 to be attained through a commercial quota, and possibly other management measures. This rule implements a commercial quota of 4 million lb (1.81 million kg) for the 2002 fishing year that is allocated on a semi-annual basis as follows: Quota Period 1 (May 1 - October 31) is allocated 57.9% of the 4-million lb (1.81 million kg) quota, or 2,316,000 lbs (1,050,512 kg), and Quota Period 2 (November 1 - April 30) is allocated 42.1% of the 4-million lb (1.81 million kg) quota, or 1,684,000 lbs (763,849 kg).

This final rule also maintains the existing possession limits of 600 lb (272 kg) and 300 lb (136 kg) for Quota Period 1 and Quota Period 2, respectively, to allow for the retention of spiny dogfish caught incidentally while fishing for other species throughout the entire fishing year.

This rule will correct the current regulatory text to extend the target F of 0.03 through the end of the 2003-2004 fishing year (May 1, 2003 - April 30, 2004).

There were 2 written comments submitted in response to the proposed rule during the comment period. One came from the Massachusetts Division of Marine Fisheries (MADMF) and the other was from a group of environmental organizations.

NMFS considered all comments received during the comment period that are directly related to the proposed measures in making the decision to issue this final rule.

Comment 1: MADMF was opposed to the level of the proposed commercial quota and requested that NMFS implement a higher quota consistent with the NEFMC recommendation. MADMF believes the resource can support a small-scale directed fishery and still rebuild.

Response: The Spiny Dogfish Monitoring Committee (Monitoring Committee) indicated that the quota of 4.0 million lb that NMFS is implementing through this final rule is consistent with the objective to achieve F=0.03, as required by the FMP. A higher quota would cause the F target to be exceeded and would not comply with the FMP’s rebuilding program.

Comment 2: MADMF commented in favor of the higher possession limit of 7,000 lb recommended by the NEFMC and opposed the proposed possession limits. MADMF stated that processors could not operate efficiently (i.e., in cost effective manner) with erratic landing levels that would result from the lower possession limits.

Response: NMFS is maintaining the current possession limits (600 lb for Quota Period 1 and 300 lb for Quota Period 2) because these levels are intended to allow incidentally caught spiny dogfish to be landed during the quota period. Although these possession limits end the directed fishery, which depends on large volumes of landings of large spiny dogfish, this is an anticipated consequence of the FMP. This approach has been chosen because it is necessary to protect the mature female spiny dogfish stock component in order to rebuild the spawning stock. The 7,000 lb (3,175 kg) possession limit would allow for some directed fishing, which is inconsistent with the rebuilding program.

The impact of erratic bycatch landings on processors was considered fully during the development of the FMP. There were two scenarios anticipated in the FMP with respect to the impacts on the processing sector and resulting markets. First, markets for dogfish could be completely lost or, second, other market opportunities could develop. It was acknowledged that the first scenario would be the more likely. However, it was believed that the processing sector might adapt to the landings allowed during the rebuilding period.

Comment 3: The environmental organizations supported the 4-million lb commercial quota, while emphasizing that a 3-million lb quota would be more consistent with the rebuilding strategy outlined in the FMP. They also supported the proposed possession limits and strongly opposed higher possession limits, which would result in a directed fishery and derailed rebuilding efforts.

Response: NMFS is implementing the 4-million lb (1.81 million kg) commercial quota and 600 lb (272 kg)/300 lb (136 kg) possession limits for Quota Period 1 and 2, respectively consistent with the Monitoring Committee recommendation to maintain fishing mortality targets and rebuilding objectives of the FMP. The Monitoring Committee did not comment on a 3-million lb quota (1.35 million kg) quota, because the 4-million lb (1.81 million kg) commercial quota allows us to comply with the FMP’s fishing mortality and rebuilding objectives, while affording the industry some economic relief. Any further reduction in landings would have to be considered in light of potential increased spiny dogfish bycatch and discards.

The preamble of the proposed rule referenced trip limits, when in fact this rule implements possession limits--defined as the maximum amount that can be landed in any one 24-hr period (calendar day).

There were no changes made to the regulatory text from the proposed rule.

This final rule has been determined to be not significant for purposes of E.O. 12866.

This action establishes annual quotas and maintains the current possession limits for the spiny dogfish fishery, which are used to control the harvest of spiny dogfish and to restrict landings when quotas are attained. This action must be taken immediately at the start of the 2002 fishing year on May 1, 2002, to conserve this resource. It would be impracticable to delay implementation of the quota provisions because a hiatus in harvest restrictions represented by the quota would allow for an unrestricted harvest and, if spiny dogfish are congregated in areas where other species are being targeted, the Period 1 quota will quickly be attained. In the absence of a commercial quota, there would be no ability to close the fishery to prevent further increases in fishing mortality and potential deleterious effects to rebuilding efforts. Therefore, the AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for the implementation of the 2002 Federal spiny dogfish quota.

NMFS and the MAFMC prepared a FRFA for this action. The FRFA includes comments on the Initial Regulatory Flexibility Act (IRFA), the discussion and the responses contained in the preamble to this final rule, and a summary of the analyses done in support of this action. Copies of the analysis are available from the Regional Administrator (see ADDRESSES ). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that entire discussion is not repeated here. A summary of the FRFA follows:

The reason that action is being taken by the agency and the objectives of this final rule are explained in the preambles to the proposed rule and this final rule. This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. There are no new compliance costs associated with this final rule.

None of the comments that were received on the measures contained in the proposed rule specifically referenced the IRFA analyses of the expected impacts of the proposed trip limit levels on small entities. Concerns about the impacts of the measures on industry were expressed and are discussed in the Comments and Responses section of this final rule (see response to Comments 1 and 2). No changes to the final rule were made as a result of these comments.

The entities impacted by this action include 488 vessels that have reported (based on vessel trip report (VTR) data) spiny dogfish landings to NMFS in 2000 (the most recent year for which there is vessel-specific data). In addition, there are vessels that are not subject to the Federal reporting requirements because they fish exclusively in state waters. It is not possible to identify these vessels, but some number of them are likely to be impacted. There is no reason to presume the impacts on these vessels would be substantially different from the impact on Federally-permitted vessels. Furthermore, 2,079 vessels were issued Federal spiny dogfish permits in 2001, but a large percentage of those have not fished for spiny dogfish. It is presumed that these vessels are interested in the fishery but have chosen not to participate under the restrictive trip limits. If any of these vessels should choose to participate in the upcoming fishing year, they might experience revenue increases associated with landings of spiny dogfish but those increases cannot be estimated.

This FRFA summary includes a discussion of minimizing significant economic impacts on small entities. The IRFA analyzed three alternatives: (1) Alternative 1 is implemented by this action (commercial quota of 4-million lb (1,814 mt) and possession limits of 600 lb (272 kg) and 300 lb (136 kg) for Quota Period 1 and Quota Period 2, respectively); (2) Both Alternative 2 (commercial quota of 8.8 million lb (4 million kg) and a possession limit of 7,000 lb (3,175 kg) for both quota periods) and Alternative 3 (no quota or possession limits) would have lower impact on small entities, but neither meets the conservation objectives of the FMP. Alternative 2 could not be enacted without amending the FMP to modify the F target specified in the rebuilding program. The circumstance contemplated in Alternative 3 could not be allowed under the FMP, which requires the fishery be managed consistent with the FMP.

The FMP determined that the spiny dogfish stock could not support a directed fishery. In the absence of a directed fishery, long-term profitability and solvancy issues could not have been anticipated and would be difficult to compute. Therefore, the potential changes in 2002 revenues under the 4-million lb (1.81-million kg) quota were evaluated relative to landings and revenues derived during 2001: 4.6 million lb (2.08 million kg) of landings, valued at $1,012,000. The analysis is based on the last full fishing year of landings data and assumed that the revenues of the 488 vessels that landed spiny dogfish in 2000 would be reduced proportionately by the proposed action. The reduction in overall gross revenues to the fishery as a whole was estimated to be about $132,000, or about $270 per vessel, compared to fishing year 2001. Compared to actual dogfish landings during the 2001 fishing year of 4.6 million lb (2,087 mt), the 4.0 million-lb (1,814 mt) quota represents a 13 percent reduction. However, the 4.0 million-lb (1,814 mt) quota would not be a reduction relative to the 2001 fishing year quota allocation. It is only due to the landings in excess of the quota that this quota specification for spiny dogfish is expected to result in a reduction in revenues.

The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the Federal Register .

These management measures for the 2002 and pre-May 2003 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 8 to 12, 2002, meeting.

The Council announced its annual preseason management process for the 2002 ocean salmon fisheries in the Federal Register on January 9, 2002 (67 FR 1186). This document announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in subsequent Federal Register documents prior to the actual meetings.

In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the necessary scientific information first became available. The first report, “Review of 2001 Ocean Salmon Fisheries” (REVIEW), summarizes biological and socio-economic data for the 2001 ocean salmon fisheries and assesses how well the Council's 2001 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2002 Ocean Salmon Fisheries” (PRE I), provides the 2002 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2001 regulations and regulatory procedures were applied to the projected 2002 stock abundances. For coho salmon there was an insufficient abundance of marked (adipose fin clipped) hatchery coho forecast for 2002; therefore, the 2000 regulations were used to model projected impacts. The completion of Preseason Report I is the initial step in the evaluating the full suite of preseason options.

The Council met in Sacramento, CA from March 11 to 15, 2002, to develop 2002 management options for proposal to the public. The Council proposed three options of commercial and recreational fisheries management for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2002 Ocean Salmon Fisheries,” which analyzes the effects of the proposed 2002 management options. This report was made available to the Council, its advisors, and the public.

Public hearings to receive testimony on the proposed options were held on: April 1, 2002, in Westport, WA and Coos Bay, OR; April 2, 2002, in Tillamook, OR and Eureka, CA; and April 3, 2002, in Moss Landing, CA. The Council also received public testimony at both the March and April meetings, and received written comments at the Council office.

The Council met from April 8 to 12, 2002, in Portland, OR to adopt its final 2002 recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2002 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council's final recommendations. This report also was made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter.

Since 1989, NMFS has listed under the Endangered Species Act (ESA) 16 evolutionarily significant units (ESUs) of salmon on the west coast. As the listings have occurred, NMFS has conducted formal ESA section 7 consultations and issued biological opinions (BOs) that consider the impacts to listed salmonid species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures. Associated with the BOs are incidental take statements that specify the level of take that is exempted from the section 9 prohibitions of the ESA. Some of the BOs have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs. Other BOs have found that implementation of the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (consultation standards) that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration. In a March 8, 2002, letter to the Council, NMFS provided the Council with ESA consultation standards and guidance for the management of stocks listed under the ESA in anticipation of the BO in preparation for the 2002 management season for Sacramento River winter chinook.

Estimates of the 2001 spawning escapements for key stocks managed under the Salmon FMP and preseason estimates of 2002 ocean abundance are provided in the Council's REVIEW and PRE I documents. The primary resource and management concerns are for salmon stocks listed under the ESA.

NMFS has listed three ESUs of coho under the ESA: central California coastal, southern Oregon/northern California coastal, and Oregon coastal (61 FR 56138, October 31, 1996; 62 FR 43937 August 18, 1997; and 63 FR 42587, August 10, 1998, respectively). The three northern sub-stocks of Oregon coastal natural (OCN) coho comprise the Oregon coastal coho ESU. OCN coho are the largest naturally produced component of the natural and hatchery coho stocks originating from rivers south of Leadbetter Point, WA. OCN coho are managed as a stock aggregate with four identified sub-stocks that include coho produced from Oregon river and lake systems south of the Columbia River. NMFS' ESA consultation standards require that the three OCN northern sub-stocks be managed in accordance with Amendment 13 to the Salmon FMP, which permits an exploitation rate of up to 15 percent under the current level of marine survival and parent spawner status. The southern sub-stock is part of the southern Oregon/northern California coastal ESU and must be managed in accordance with the requirements for that ESU. The 2002 ocean abundance estimate for OCN is 71,800 coho, which is 143 percent of the 2001 preseason prediction of 50,100 coho, and 44 percent of the post-season estimate of 163,200 coho (PRE I).

Central California coastal coho and southern Oregon/northern California coastal coho are listed as threatened species under the ESA (61 FR 56138, October 31, 1996, and 62 FR 24588, May 6, 1997). Coho populations in California have not been monitored closely in the past, and no forecasts of the ocean abundance of listed coho originating from California are available; these runs have been generally at low abundance levels for many years. NMFS' ESA consultation standards for the southern Oregon/northern California coastal coho and Central California coastal coho ESUs require that the ocean exploitation rate on Rogue/Klamath hatchery coho be constrained to 13 percent or less, and that the retention of coho in recreational and commercial fisheries off California be prohibited.

Sacramento River winter chinook is listed as an endangered species under the ESA (59 FR 440, January 4, 1994). The Council, at its March 2002 meeting, initiated the FMP amendment process to develop recovery and long term conservation objectives for Sacramento River winter chinook and Central Valley spring chinook. The amendment is on a schedule for completion by November 2003. NMFS has issued a 2-year biological opinion to accommodate the amendment process. The ESA consultation standard for the 2002 seasons requires that the duration and timing of commercial and recreational seasons south of Point Arena, California, not change substantially relative to the 2000 and 2001 seasons. Spawning populations of Sacramento River winter chinook have consistently increased since 1994; the spawner abundance in 2001 was estimated to be 7,200 fish.

California Central Valley spring chinook is listed as a threatened species under the ESA (64 FR 50394, September 16, 1999). Since 1994, the spawning populations of Central Valley spring chinook returning to Deer, Mill, and Butte creeks have increased, with relatively strong returns to Butte Creek. The combined escapement of the three populations in 2001 was 12,300 fish.

California coastal chinook is listed as a threatened species under the ESA (64 FR 50394, September 16, 1999). Coastal chinook spawning populations are not well monitored and no estimate of an ocean exploitation rate is available. NMFS’ ESA consultation standard for California coastal chinook requires that the ocean harvest rate on Klamath River fall chinook not exceed 0.16, which is the maximum observed since 1996. The standard is intended to prevent harvest impacts on California coastal chinook from increasing substantially above levels that have occurred since 1996.

Snake River wild fall chinook is listed under the ESA as a threatened species (57 FR 14653, April 22, 1992). Direct information on the stock's ocean distribution and on fishery impacts is not available. Fishery impacts on Snake River fall chinook are evaluated using the Lyons Ferry Hatchery stock as an indicator. The Lyons Ferry stock is widely distributed and harvested by ocean fisheries from southern California to Alaska. NMFS' ESA consultation standard requires that Council fisheries must be managed to ensure that the exploitation rate on age-3 and age-4 adults for the combined Southeast Alaska, Canadian, and Council fisheries is 30 percent less than that observed during the 1988-1993 base period.

This is the third year that NMFS provided guidance to the Council related to the Puget Sound chinook ESU (64 FR 14308, March 24, 1999). NMFS' consultation standards for Puget Sound chinook stocks are expressed in terms of total or southern U.S. fishery exploitation rate ceilings, or terminal escapement objectives. Under the current management structure, Council fisheries are included as part of the suite of fisheries that comprise the fishing regime negotiated each year by the co-managers under U.S. v. Washington to meet management objectives for Puget Sound and Washington Coastal salmon stocks. Because these management objectives and the management planning structure address fisheries wherever they exist, Council and Puget Sound fisheries are interconnected. Therefore, in adopting its regulations, the Council must determine that its fisheries in the ocean, when combined with the suite of other fisheries impacting this ESU, meet the management targets set for stocks within this ESU. NMFS estimated in its BO for 2000 fisheries that the exploitation rates from Council-managed fisheries on Puget Sound spring and fall chinook stock aggregates have been zero and three percent or less, respectively, in recent years. Management actions taken to meet exploitation rate targets will, therefore, occur primarily in the Puget Sound fisheries, but the nature of the existing process is such that ocean fishery impacts will be accounted for, and are potentially liable to constraining measures to meet particular targets.

NMFS has evaluated the “Puget Sound Comprehensive Chinook Management Plan: Harvest Management Component as a Resource Management Plan” for Puget Sound chinook, and the “Summer Chum Salmon Conservation Initiative—An Implementation Plan to Recover Summer Chum in the Hood Canal and Strait of Juan de Fuca Region” for Hood Canal summer chum, under ESA 4(d) rule (65 FR 42422, July 10, 2000) (the RMPs). The RMPs, jointly developed by the Washington Department of Fish and Wildlife and the Puget Sound Treaty Tribes, include stock-specific harvest management objectives for Puget Sound chinook and Hood Canal summer chum. NMFS has determined that the RMPs are consistent with the ESA 4(d) rule, and that the 2002 ocean and inside fisheries are consistent with the RMPs and associated biological opinion. For the 2002 fisheries the Hood Canal summer chum RMP requires non-retention of chum north of Cape Alava during August and September.

The Council recommended ocean harvest levels and management measures for 2002 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable law, including the ESA and U.S. obligations to Indian tribes with federally recognized fishing rights. Accordingly, NMFS has adopted them.

The dominant issue before the Council in the development of the 2002 management measures for the west coast ocean salmon fisheries was achieving an ocean exploitation rate on OCN coho that would meet the State of Oregon's management objective for ocean harvest of lower Columbia River wild coho. Lower Columbia River coho are not federally listed, however they are listed as an endangered species by the State of Oregon. To protect lower Columbia River coho, Oregon recommended to the Council an ocean exploitation rate on OCN of 10.5-12.5 percent. No ocean exploitation rate estimate is available for lower Columbia River coho, and OCN were used as the best available surrogate. The ESA and Salmon FMP objective for OCN is less than or equal to 15 percent. The reduced abundance of coho, particularly the hatchery stocks, also constrained access to the strong Columbia River chinook runs.

The Oregon Production Index of Oregon coastal and Columbia River hatchery coho stocks is forecast to be only 300,000 fish for 2002, compared to 1.7 million fish in 2001. At the same time, the OCN population is forecast to improve to 71,800 fish, up from the 50,100 coho forecast in 2001. This combination of OCN and hatchery coho abundances required significant constraints on ocean fisheries in order to meet Oregon's OCN management objective for lower Columbia River wild coho. The North of Falcon coho quota in 2002 is only about 47 percent of the 2001 quota.

From the U.S.-Canada border to Cape Falcon, OR, ocean fisheries are managed to protect depressed lower Columbia River fall chinook salmon and Washington coastal and Puget Sound natural coho salmon stocks, and to meet ESA requirements for Snake River fall chinook salmon. Ocean treaty and non-treaty harvests and management measures were based in part on negotiations between Washington State fishery managers, commercial and recreational fishing groups, and the Washington coastal, Puget Sound, and Columbia River treaty Indian tribes as authorized by the U.S. District Court in U.S. v. Washington , No. C70-9213 (W.D. Wash.); U.S. v. Oregon , Civil No. 68-513 (D.Or.); and Hoh Indian Tribe v. Baldrige 522 F. Supp. 683 (1981).

North of Cape Falcon, OR, the 2002 management measures have substantially higher chinook quotas but much lower coho quotas relative to the 2001 season. The total allowable catch for 2002 is 150,000 chinook and 140,000 coho; these fisheries are restricted to protect depressed lower Columbia River wild coho, Washington coastal, Puget Sound, and OCN coho. Washington coastal and Puget Sound chinook generally migrate to the far north and are affected insignificantly by ocean harvests from Cape Falcon to the U.S.-Canada Border. North of Cape Alava there is a new provision requiring non-retention of chum during August and September.

South of Cape Falcon, OR, the retention of coho is prohibited, except for a recreational selective fishery off Oregon with a 22,500-fish quota of marked hatchery coho. Chinook fisheries are constrained primarily to meet the ESA standards for California coastal chinook and Sacramento River winter chinook. The Council's recommendations were below the 15-percent exploitation rate permitted under Amendment 13 to protect listed OCN coho stocks, with an expected 12.3-percent OCN coho exploitation rate and a 7.5-percent marine exploitation rate for Rogue/Klamath coho.

The treaty-Indian commercial troll fishery quota is 60,000 chinook in ocean management areas and Area 4B combined, a significant increase from 2001. The fisheries include a chinook-directed fishery in May and June (under a quota of 30,000 chinook) and an all-salmon season beginning in July with a 30,000 chinook sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 60,000 coho, a decrease from 2001.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2003 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the recreational seasons from Horse Mountain to the U.S.-Mexico Border will open off California in 2003 as indicated in the season description section. At the November 2002 meeting, the Council may consider inseason recommendations to adjust commercial and recreational seasons for all salmon except coho prior to May 1 in areas off Oregon south of Cape Falcon. At the March 2003 meeting, the Council may consider inseason recommendations to open commercial seasons for all salmon except coho prior to May 1 in areas off Washington and Oregon north of Cape Falcon.

The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2002 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in Section 7. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners.

The following are the management measures recommended by the Council and approved and implemented by NMFS for 2002 and, as specified, for 2003.

May 1 through earlier of June 30 or 50,000 chinook quota. All salmon except coho (C.6). See gear restrictions (C.2.a). Cape Flattery and Columbia Control Zones closed (C.4.a, C.4.b). Vessels must land and deliver their fish within the area, in adjacent areas closed to commercial non-Indian salmon fishing, or in areas south of Cape Falcon, and within 24 hours of any closure of this fishery; State regulations require that fishers fishing within this area and intending to land salmon south of Cape Falcon notify Oregon Department of Fish and Wildlife (ODFW) before they leave the area at the following phone number (541) 867-0300, Ext. 252. Inseason actions may modify quotas or harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.7.a).

Except as provided below during the selective fishery, the season will be: July 1 through earlier of September 8 or 32,500 chinook quota (C.7.a). All salmon except coho, and no chum retention north of Cape Alava during August and September. Gear restricted to plugs 6 inches (15.2 cm) or longer between U.S.-Canada Border to Leadbetter Point (C.2.b). Cape Flattery and Columbia Control Zones closed (C.4.a, C.4.b). Vessels must land and deliver their fish within the area, in adjacent areas closed to commercial non-Indian salmon fishing, or in areas south of Cape Falcon, and within 24 hours of any closure of this fishery. No more than four spreads per line between Cape Falcon and Leadbetter Point (C.2.c). Trip limits, gear restrictions, and guidelines may be implemented or adjusted inseason (C.7.a).

Leadbetter Point to Cape Falcon: All salmon August 1 through earlier of September 8 or subarea quota of 5,000 adipose fin clipped coho (all retained coho must have a healed adipose fin clip). Fishery will remain open for all salmon except coho after the marked hatchery coho quota is reached, provided adequate chinook impacts remain on the 32,500 chinook quota. Washington state regulations require fishers fishing within this subarea to land coho south of Leadbetter Point. Oregon state regulations require that fishers fishing within this subarea and intending to land chinook or coho south of this subarea notify ODFW before they leave the subarea at the following phone number (541) 867-0300 Ext. 252. Trip limits, gear restrictions, and guidelines may be implemented or adjusted inseason.

March 20 through July 15; August 1 through August 29; and September 1 through October 31. All salmon except coho. See gear restrictions (C.2.a, C.2.d) and Oregon State regulations for a description of the closed area at the mouth of Tillamook Bay.

In 2003 the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its November 2002 meeting.

March 20 through June 30; July 17 through August 29; and September 1 through October 31. All salmon except coho. See gear restrictions (C.2.a, C.2.d).

In 2003 the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its November 2002 meeting.

March 20 through May 31. All salmon except coho. See gear restrictions (C.2.a, C.2.d).

June 1 through earlier of June 30 or 3,000 chinook quota; July 1 through earlier of July 31 or 1,500 chinook quota; August 1 through earlier of August 29 or 3,000 chinook quota; and September 1 through earlier of September 30 or 2,000 chinook quota. No transfer of remaining quota from earlier fisheries allowed. All salmon except coho. Possession and landing limit of 50 fish per trip. See gear restrictions (C.2.a, C.2.d). All salmon must be landed and delivered to Gold Beach, Port Orford, or Brookings, and within 24 hours of closure.

In 2003 the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its November 2002 meeting.

August 16 through the earlier of August 30 or 3,000 chinook quota and September 1 through earlier of September 30 or 10,000 chinook quota. All salmon except coho. Possession and landing limit of 40 fish per day. See gear restrictions (C.2.a, C.2.e). All fish must be landed within the area and within 24 hours of any closure of the fishery. When the fishery is closed between the OR-CA border and Humbug Mountain and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, OR prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival. Klamath Control Zone closed (C.4.c).

July 20 through earlier of July 30 or 10,000 chinook quota; August 1 through August 30; and September 1 through September 30. All salmon except coho. All fish caught in this area in July and August must be landed within the area. All fish caught in this area must be landed within 24 hours of any closure of the fishery. See gear restrictions (C.2.a, C.2.e).

May 1 through September 30. All salmon except coho. Minimum size limit 26 inches (66.0 cm) total length. See gear restrictions (C.2.a, C.2.e).

October 1 through October 18, Monday through Friday. All salmon except coho. Minimum size limit 26 inches (66.0 cm) total length. See gear restrictions (C.2.a, C.2.e).

May 1 through September 30. All salmon except coho. Minimum size limit 26 inches (66.0 cm) total length. See gear restrictions (C.2.a, C.2.e).

C.1. Compliance with Minimum Size or Other Special Restrictions: All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

C.2. Gear Restrictions:

a. Single point, single shank, barbless hooks are required in all fisheries.

b. U.S.-Canada Border to Leadbetter Point, July 1 to September 8: Gear restricted to plugs with a one piece body that is at least six inches long, not including hooks or attachments.

c. Leadbetter Point to Cape Falcon, July 1 to September 8: No more than 4 spreads are allowed per line.

Spread defined: A single leader connected to an individual lure or bait.

d. Off Oregon South of Cape Falcon: No more than 4 spreads are allowed per line.

e. Off California: No more than 6 lines are allowed per vessel and barbless circle hooks are required when fishing with bait by any means other than trolling.

Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

C.3. Transit Through Closed Areas with Salmon on Board: It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species and no salmon are in possession.

C.4. Control Zone Definitions:

a. Cape Flattery Control Zone: The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava, 48°10′00″ N. lat. and east of 125°05′00″ W. long.

b. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

c. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately 6 nautical miles (11.1 km) north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles (22.2 km) off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles (11.1 km) south of the Klamath River mouth).

C.5. Notification When Unsafe Conditions Prevent Compliance with Regulations: If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board and the estimated time of arrival.

C.6. Incidental Halibut Harvest: During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.3 cm) in total length (with head on). License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone 800-662-9825). ODFW and Washington Department of Fish and Wildlife (WDFW) will monitor landings. If the landings are projected to exceed the 39,300-lb. (17.8-mt) preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery.

License holders may land no more than 1 halibut per each 3 chinook, except 1 halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip.

C.7. Inseason Management: In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS:

a. In the overall non-Indian commercial chinook quota north of Cape Falcon, 20,000 chinook from the May/June harvest quota are the result of impacts assessed at the July-September harvest impact rate. Inseason, these 20,000 chinook (or remaining portion thereof) may be transferred to the July-September harvest guideline at a one-to-one rate if not caught in the May/June fishery. Any chinook remaining in the May/June harvest guideline in excess of 20,000 may be transferred to the July-September harvest guideline on a fishery impact equivalent basis.

b. At the March 2003 meeting, the Council will consider inseason recommendations to open commercial seasons for all salmon except coho prior to May 1 in areas off Oregon and Washington north of Cape Falcon.

C.8. Consistent with Council management objectives, the State of Oregon may establish additional late-season, chinook-only fisheries in state waters. Check state regulations for details.

C.9. For the purposes of CDFG Code, Section 8232.5, the definition of the Klamath Management Zone for the ocean salmon season shall be that area from Humbug Mountain, OR to Horse Mountain, CA.

May 25 through earlier of June 16 or 20,000 chinook quota (7 days per week) (C.4.). Chinook salmon only; 2 fish per day. See gear restrictions (C.2.a). Columbia Control Zone closed (C.3.a).

July 7 through earlier of September 8 or 11,780 coho subarea quota, 7 days per week. All salmon, except no chum retention during August and September; 2 fish per day and all retained coho must have a healed adipose fin clip. Chinook non-retention east of the Bonilla-Tatoosh line during the Council managed recreational ocean fishery in July through September. The Bonilla-Tatoosh Line is defined as a line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, BC. Inseason management may be used to sustain season length and keep harvest within a guideline of 2,600 chinook (C.4).

July 7 through earlier of September 8 or 2,770 coho subarea quota; September 21 through earlier of October 6 or overall subarea quota of 100 coho and 100 chinook; 7 days per week. All salmon; 2 fish per day and all retained coho must have a healed adipose fin clip. See gear restrictions (C.2.a). Inseason management may be used to sustain season length and keep harvest within a guideline of 1,600 chinook (C.4).

June 30 through earlier of September 8 or 39,280 coho subarea quota. Sunday through Thursday prior to August 16, 7 days per week thereafter. All salmon. 2 fish per day and all retained coho must have a healed adipose fin clip. See gear restrictions (C.2.a). Inseason management may be used to sustain season length and keep harvest within a guideline of 32,000 chinook (C.4).

July 7 through earlier of September 30 or 55,700 coho subarea quota. Sunday through Thursday prior to August 16, 7 days per week beginning August 16. All salmon. Two fish per day and all retained coho must have a healed adipose fin clip. Closed between Cape Falcon and Tillamook Head beginning August 1. Columbia Control Zone closed (C.3.a). See gear restrictions (C.2.a). Inseason management may be used to sustain season length and keep harvest within a guideline of 11,200 chinook (C.4).

Except as provided below during the selective fishery, the season will be April 1 through October 31. All salmon except coho; 2 fish per day. See gear restrictions (C.2.a, C.2.b). See Oregon State regulations for a description of a closure at the mouth of Tillamook Bay.

In 2003 the season will open March 15 for all salmon except coho. Two fish per day. Same gear restrictions as in 2002. This opening could be modified following Council review at its November 2002 meeting.

Selective fishery for marked coho: July 7 through earlier of August 4 or a landed catch of 22,500 coho; 7 days per week. All salmon; 2 fish per day, all retained coho must have a healed adipose fin clip. See gear restrictions (C.2.a, C.2.b). Open days may be adjusted to utilize the available quota. All salmon except coho season reopens the earlier of August 5 or attainment of the coho quota.

May 15 through June 30; July 3 and 4; and August 1 through September 15. All salmon except coho; 2 fish per day; no more than 6 fish in 7 consecutive days. See gear restrictions (C.2.a, C.2.b). Klamath Control Zone closed in August (C.3.b).

February 16 through July 7 and July 20 through November 17. All salmon except coho; 2 fish per day. Minimum size 24 inches (61.0 cm) total length through April 30 and 20 inches (50.8 cm) total length thereafter. See gear restrictions (C.2.a, C.2.b, C.2.c).

In 2003, season opens February 15 for all salmon except coho. 2 fish per day, 24-inch (61.0-cm) total length minimum size limit and the same gear restrictions as in 2002.

April 13 through November 10. All salmon except coho; 2 fish per day. Minimum size limit 24 inches (61.0 cm) total length through April 30 and 20 inches (50.8 cm) total length thereafter. See gear restrictions (C.2.a, C.2.b, C.2.c).

In 2003, the season will open April 12 for all salmon except coho. 2 fish per day, 24-inch (61.0-cm) total length minimum size limit and the same gear restrictions as in 2002.

March 30 through September 29. All salmon except coho; 2 fish per day. Minimum size limit 24 inches (61.0 cm) total length through April 30 and 20 inches (50.8 cm) total length thereafter. See gear restrictions (C.2.a, C.2.b, C.2.c).

In 2003, the season will open March 29 for all salmon except coho. Two fish per day, 24-inch (61.0-cm) total length minimum size limit and the same gear restrictions as in 2002.

C.1. Compliance with Minimum Size and Other Special Restrictions: All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished, and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

C.2. Gear Restrictions: All persons fishing for salmon, and all persons fishing from a boat with salmon on board must meet the gear restrictions listed below for specific areas or seasons.

a. U.S.-Canada Border to Point Conception, California: No more than one rod may be used per angler and single point, single shank barbless hooks are required for all fishing gear.

b. Between Cape Falcon, OR and Point Conception, CA: Anglers must use no more than 2 single point, single shank, barbless hooks.

c. Off California between Horse Mountain and Point Conception: Single point, single shank, barbless circle hooks (see circle hook definition below) must be used if angling with bait by any means other than trolling and no more than 2 such hooks shall be used. When angling with 2 hooks, the distance between the hooks must not exceed 5 inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

C.3. Control Zone Definitions:

a. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

b. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately 6 nautical miles (11.1 km) north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles (22.2 km) off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles (11.1 km) south of the Klamath River mouth).

C.4. Inseason Management: Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. Actions could include modifications to bag limits or days open to fishing, and extensions or reductions in areas open to fishing. NMFS may transfer coho inseason among recreational subareas north of Cape Falcon to help meet the recreational season duration objectives (for each subarea) after conferring with the states, Council, representatives of the affected ports, and the Salmon Advisory Subpanel recreational representatives north of Cape Falcon.

In addition to the above and modifications already noted under season descriptions, the following guidance is provided to NMFS:

In the overall recreational chinook quota north of Cape Falcon, 10,000 chinook from the May/June harvest quota are the result of impacts assessed at the July-September harvest impact rate. Inseason, these 10,000 chinook (or remaining portion thereof) may be transferred to the July-September harvest guideline at a one-to-one rate if not caught in the May/June fishery. Any chinook remaining in the May/June harvest guideline in excess of 10,000 may be transferred to the July-September harvest guideline on a fishery impact equivalent basis.

C.5. Additional Seasons in State Territorial Waters: Consistent with Council management objectives, the states of Washington and Oregon may establish limited seasons in state waters. Oregon state-water fisheries are limited to chinook salmon. Check state regulations for details.

B.1. All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

B.2. Applicable lengths for dressed, head-off salmon, are 18 inches (45.7 cm) for chinook and 12 inches (30.5 cm) for coho. Minimum size and retention limits for ceremonial and subsistence harvest are as follows:

Makah Tribe: None.

Quileute, Hoh and Quinault tribes: Not more than 2 chinook longer than 24 inches (61.0 cm) in total length may be retained per day. Chinook less than 24 inches (61.0 cm) total length may be retained.

B.3. The area within a 6 nautical mile (11.1 km) radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing. A closure within 2 nautical miles (3.7 km) of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

C.1. The overall treaty troll ocean quotas are 60,000 chinook and 60,000 coho. The overall chinook quota is divided into 30,000 chinook for the May/June chinook-directed fishery and 30,000 chinook for the July through September all-salmon season. If the chinook quota for the May/June fishery is not fully utilized, the excess fish cannot be transferred into the later all-salmon season. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 30.

Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. In addition, the 2002 Pacific halibut management measures were published in the Federal Register on March 20, 2002 (67 FR 12885). The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate International Pacific Halibut Commission (IPHC) license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

The following measures have been approved by IPHC, and implemented by NMFS. The operator of a vessel who has been issued an incidental halibut harvest license by the IPHC may retain Pacific halibut caught incidentally in Area 2A, during authorized periods, while trolling for salmon. Incidental harvest is authorized only during the May and June troll seasons. It is also authorized after June 30 if halibut quota remains and if halibut retention is announced on the NMFS hotline (phone 800-622-9825). License holders may land no more than 1 halibut per each 3 chinook, except 1 halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Halibut retained must meet the minimum size limit of 32 inches (81.3 cm). The ODFW and WDFW will monitor landings and, if they are projected to exceed the 39,300-lb. (17.8-mt) preseason allocation or the Area 2A non-Indian commercial total allowable catch of halibut, NMFS will take inseason action to close the incidental halibut fishery. License applications for incidental harvest must be obtained from the IPHC. Applicants must apply prior to April 1 of each year.

In addition to the gear restrictions shown in Section 1, 2, and 3, the following gear definitions and restrictions are applicable:

Commercial Troll Fishing Gear: Troll fishing gear for the ocean salmon fisheries in the EEZ off Washington, Oregon, and California is defined as one or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area (FMA) off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

Recreational Fishing Gear: Recreational fishing gear for the FMA is defined as angling tackle consisting of a line with no more than one artificial lure or natural bait attached. In that portion of the FMA off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. In that portion of the FMA off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed 4 lb (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon and no person fishing from a boat with salmon on board may use more than one rod and line. Fishing includes any activity that can reasonably be expected to result in the catching, taking, or harvesting of fish.

Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured. Geographical landmarks referenced in this document are at the following locations:

Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing.

This notification of annual management measures is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment.

The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures is driven by the availability of biological data. Ocean salmon fisheries are directed primarily at maturing fish destined to return to freshwater and spawn each year. Fisheries are adjusted annually based on the status of the affected stocks that particular year. But the information necessary to forecast stock status, particularly escapement information, is not available until the first part of each year, since spawning escapement continues through the fall. The preseason planning and public review process is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. The government entities also involve the affected user groups. This complex process is compressed into a 2-month period which culminates at the April Council meeting in order to provide decisions necessary prior to the start of fisheries on May 1. Fisheries generally begin May 1 to provide access to harvestable fish and greater flexibility to use time/area constraints to meet conservation and use objectives.

As described earlier (See Schedule Used to Establish 2002 Management Measures), the Council solicited public comment on these measures and has notified the public of the measures it recommended for implementation. In addition to the Council process, notice and opportunity for public comment is provided through meetings and caucuses of State, Tribal, local governments, and the various user groups. This parallel process occurs throughout the February to April time-frame when Council managed salmon fisheries are developed. The major meetings that concern salmon fisheries on the west coast include the Klamath Fishery Management Council, established at 16 U.S.C. 46085-2; North of Cape Falcon Forum, sponsored by the state of Washington and northwest Indian tribes with treaty fishing rights; U.S. v. Oregon meetings related to ocean and Columbia River fisheries; Oregon Fish and Wildlife Commission; and California Fish and Game Commission. Recommendations and information from these forums are incorporated into the Council process when representatives from these entities provide comments and information at Council sponsored functions.

Providing additional opportunity for prior notice and public comments on these measures through a proposed and final rulemaking process would be impracticable and contrary to the public interest. Given the need to protect extremely low returns of many ocean salmon stocks listed under the ESA, the need to prevent overfishing, the need to facilitate a level of escapement to meet the requirements of the resource and inside fisheries, and the need to allow harvest of fish that can be harvested while still allowing appropriate escapements; it is essential to have these measures effective at the beginning of the fishing year. Otherwise 2001 management measures will continue to apply.

For example, under 2001 management in the Fort Bragg area a troll fishery in May would open, which would not be open under 2002 management regulations because the impacts on OCN coho would be too high. In other cases, areas scheduled to open early in the 2002 season would remain closed under 2001 management, thus foreclosing the opportunity to harvest some stocks that are available for harvest this year. In 2001, the recreational fishery north of Cape Falcon did not open until July 1. Under 2002 regulations the recreational fishery would open on May 25. As a result, using the 2001 regulations would preclude harvest opportunity for chinook that would not be recovered later because of conservation constraints for coho.

Overall, the annual population dynamics of the various salmon stocks cause managers to vary the season structure of the various west coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).

The provisions of 50 CFR 660.411 state that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after date of publication in the Federal Register . NMFS will receive public comments on this action for 15 days after the date of publication of this action in the Federal Register .

The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this rule. As previously discussed, these measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. If these measures are not in place on May 1, the previous year's management measures will continue to apply. Failure to implement these measures immediately could compromise the status of certain stocks and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action.

To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and by U.S. Coast Guard Notice to Mariners Broadcast. NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by OMB under control number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met, or to obtain temporary mooring in Brookings, OR, is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Since 1989, NMFS has listed 16 ESUs of salmon on the West Coast. As the listings have occurred, NMFS has conducted formal ESA section 7 consultations (Table 1) and issued BOs that consider the impacts to listed salmon species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures.

Associated with the BOs are incidental take statements that specify the expected level of take. If the fisheries are conducted in accordance with the statement's terms and conditions the take is exempted from the section 9 prohibitions of the ESA. Some of the BOs have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs. Other BOs have found that implementation of the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (consultation standards) that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration. NMFS recently completed an additional BO regarding Sacramento River winter chinook for the 2002 and 2003 seasons.

In a March 8, 2002, letter to the Council, NMFS provided the Council with ESA consultation standards and guidance for the management of stocks listed under the ESA, and in anticipation of the BO that was being prepared for the 2002 management season for Sacramento River winter chinook.

Proposed fisheries affecting Puget Sound chinook and the Hood Canal summer chum were considered under provisions of the 4(d) rule. NMFS has determined that the Puget Sound chinook and Hood Canal summer chum RMPs are consistent with the ESA section 4(d) rule, and that the 2002 ocean and inside fisheries are consistent with the RMPs. In addition, the 2002 and pre-May 2003 management measures are consistent with the standards set to avoid jeopardy in the RMPs and associated biological opinion.

The Council's recommended management measures are consistent with the BOs that find no jeopardy, the reasonable and prudent alternatives in the jeopardy BOs, and the terms of the State and Tribal RMPs.