The pink bollworm ( Pectinophora gossypiella (Saunders)) is a destructive cotton pest found throughout many of the cotton-growing regions of the world. The larvae of the pink bollworm feed inside growing cotton bolls, destroying the cotton.

The regulations in Subpart—Pink Bollworm (7 CFR 301.52 through 301.52-10, referred to below as the regulations) contain quarantine restrictions aimed at preventing the spread of the pink bollworm. Section 301.52 contains, among other things, lists of quarantined States and regulated articles. These regulated articles include cotton, cotton seed, lint and linters, cotton waste, and other articles associated with cotton, as well as other commodities, such as kenaf and okra, on which the pink bollworm also feeds. These articles must meet specific certification, permitting or safeguarding requirements when moving between States or areas. Section 301.52-2a lists regulated areas, which are divided into two types, suppressive areas and generally infested areas. Section 301.52-3 outlines conditions governing the interstate movement of regulated articles from quarantined States.

The State of Oklahoma has been listed in § 301.52 as a quarantined State and, in the list of regulated areas in § 301.52-2a, the entire State has been designated as a generally infested area. However, Statewide trapping surveys conducted over the last 2 years have shown Oklahoma to be free of pink bollworm. Areas found to be free of pink bollworm infestation for at least 2 years meet our standards for removal from lists of quarantined States and regulated areas. Because Oklahoma has been free of pink bollworm for at least 2 years, we are amending the regulations by removing Oklahoma from the lists of quarantined States in § 301.52 and regulated areas in § 301.52-2a.

In addition to the provisions of this interim rule discussed above, we are also making two nonsubstantive editorial changes to § 301.52-1 in this document. First, we are removing the paragraph designations from the definitions in that section for the sake of consistency with our other regulations in title 7, where the definitions are set out in alphabetical order without paragraph designations. Second, we are revising the footnote that appears in the definition of Treatment manual so that the footnote accurately describes the Plant Protection and Quarantine Treatment Manual's incorporation by reference.

Immediate action is warranted to relieve restrictions on the interstate movement of regulated articles from Oklahoma that are no longer necessary. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

We are amending the pink bollworm regulations by removing the State of Oklahoma from the lists of quarantined States in § 301.52 and regulated areas in § 301.52-2a. Statewide trapping surveys conducted over the last 2 years have shown that Oklahoma has been free of pink bollworm during that entire period and has, therefore, met our standards for removal from the lists cited above. This action will relieve restrictions on the interstate movement of regulated articles from Oklahoma that are no longer necessary.

The entities most likely to be affected by this action are Oklahoma cotton producers. In 1997, there were 849 cotton farms in Oklahoma, which produced $50.89 million worth of cotton. 1 On average then, each farm produced approximately $60,000 worth of cotton. Under the guidelines of the Small Business Administration, a small cotton farm is described as having $750,000 or less in annual revenue. Approximately 99 percent of all cotton farms in Oklahoma in 1997 could be classified as small entities.

The largest quarantine-related expenses for small cotton growers in Oklahoma would have resulted from the treatment requirements that apply to used cotton harvesting, ginning, and oil mill equipment, cotton seed, and raw (non-ginned) cotton being moved interstate. These requirements appear to have had little economic effect; their removal should also have little effect.

Cotton producers in Oklahoma have been required to clean their used cotton harvesting, ginning, or oil mill equipment if moving it interstate to a non-quarantined area. APHIS personnel in Oklahoma estimate that the average cost to have that equipment cleaned and cleared for interstate movement varies from $300 to $700 per machine. While no data are currently available, it is believed that very few cotton producers in Oklahoma incur these costs because very few move machinery out of the State.

Cotton seed and raw cotton produced in a regulated area must be fumigated before being moved interstate to non-quarantined areas. Current costs to Oklahoma cotton producers for this fumigation are not available, due to the lack of interstate movement of cotton seed and raw cotton from Oklahoma over the last several years. The presence of more-than-adequate facilities within the State for processing cotton seed and ginning raw cotton means that producers do not need to move cotton seed or raw cotton across State lines for these purposes.

In summary, removing Oklahoma from the lists of quarantined States and regulated areas for pink bollworm is expected to have little or no economic impact on small entities. Any effects that do occur will likely be positive.

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

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

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

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

Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-90-30 series airplanes was published in the Federal Register on January 4, 2002 (67 FR 542). That action proposed to require modification of the main battery ground stud and installation of a nameplate which indicates torque requirements for the ground stud nut.

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

Two commenters request clarification regarding the compliance time to accomplish paragraph (b) of this AD, if the modification required by paragraph (a) of this AD has been accomplished in accordance with McDonnell Douglas Service Bulletin MD90-24-004, original issue, dated February 26, 1996, prior to the effective date of the AD.

The FAA concurs with the need for such clarification and accordingly has changed the language of this AD to specify that, if paragraph (a) of this AD has been accomplished prior to the effective date of this AD, then paragraph (b) of this AD must be accomplished within 6 months after the effective date of this AD.

The FAA has changed the applicability of this final rule to clarify model designations as published in the most recent type certificate data sheet for the affected airplanes. Specifically, the proposed AD referred to “McDonnell Douglas Model MD-90-30 series airplanes,” but this final rule refers to “McDonnell Douglas Model MD-90-30 airplanes.”

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

There are approximately 18 Model MD-90-30 airplanes of the affected design in the worldwide fleet. The FAA estimates that 14 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the actions required by paragraphs (a) and (b) of this AD, and that the average labor rate is $60 per work hour. Required parts will be provided by the manufacturer at no cost. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $840, or $60 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757 series airplanes was published in the Federal Register on October 24, 2001 (66 FR 53743). That action proposed to require installation of an extender bracket for the compensator of the Simmonds fuel quantity indication system (FQIS) in the main fuel tanks.

Since the issuance of the proposed AD, the FAA has reviewed and approved Boeing Service Bulletins 757-28-0057 and 757-28-0059, both Revision 1, both dated February 28, 2002. (The proposed AD refers to Boeing Special Attention Service Bulletins 757-28-0057 and 757-28-0059, both dated September 14, 2000, as the appropriate sources of service information for the proposed actions.) We find that the changes incorporated in Revision 1 of the service bulletins are not substantive, meaning that airplanes modified per the original issue of the service bulletins are not subject to any additional work under Revision 1 of the service bulletins. Therefore, the FAA has revised paragraph (a) of this final rule to refer to Revision 1 of the service bulletins as the appropriate sources of service information for the actions in that paragraph. In addition, we have added a new Note 2 (and reordered subsequent notes accordingly) to give credit for installations accomplished before the effective date of this AD according to the original issue of the service bulletins. Also, because no additional airplanes were included in the effectivity listing of the revised service bulletins, and for the convenience of operators, we have revised the applicability statement of this final rule to refer to airplanes listed in Revision 1 of the service bulletins.

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

One commenter, an operator, asks us to extend the compliance time for the proposed AD from 24 to 48 months. The commenter notes that the proposed actions necessitate defueling, purging, and opening the wing fuel tanks. Such actions are classified as heavy maintenance and, thus, would normally only be performed during a heavy maintenance visit ( e.g., a heavy “C”-check). The commenter notes that the interval for such a check for its fleet is approximately 48 months. This commenter believes that allowing the proposed actions to be accomplished at a normal heavy maintenance visit would not significantly decrease the level of safety, and notes that allowing such a schedule would enable operators to avoid significant out-of-service time and labor costs.

The FAA concurs with the commenter's request. We note that extending the compliance time to 48 months results in a longer compliance time than allowed in other ADs related to possible ignition in the fuel tank. However, our decision is based on the fact that a condition in which the compensator of the Simmonds FQIS is exposed to fuel vapors, the flapper valve is in contact with the compensator, and a wiring failure occurs outside the fuel tank, is expected to be rare. The compensator is only exposed to flammable vapors when the quantity of fuel is low, and the flapper valve would have to be lifted open significantly to come into contact with the compensator. Furthermore, we recognize that there are safety benefits to limiting the number of entries into the fuel tank, and the longer compliance time may allow operators to combine the required modification with other fuel tank maintenance. Therefore, we find that increasing the compliance time for this AD from 24 months to 48 months does not significantly decrease the level of safety. We have revised paragraph (a) of this final rule accordingly.

One commenter asks us to reduce the compliance time for the requirements of the proposed AD from 24 months to 12 months or less. The commenter notes that the proposed AD identifies an electrical arc associated with an external wiring fault as the only potential source of ignition. However, the commenter would like it to be noted that a lightning-induced transient on the fuel compensator wiring may represent another source of ignition. The commenter states that current data show the probability of a lightning strike on an aircraft as one strike per aircraft per year. The commenter's suggestion to reduce the compliance time for the proposed AD is based on this probability.

We do not concur to reduce the compliance time. While we agree that lightning strikes can induce a transient on the fuel compensator wiring, a lightning strike on its own is unlikely to be a potential source of ignition in the fuel tank. For a lightning strike to be a threat, two additional conditions must be present. First, as noted previously, the compensator for the Simmonds FQIS, which is normally covered by fuel, would have to be exposed to fuel vapor; this could only occur at a low-fuel state. Second, there would have to be electrical contact between the Simmonds FQIS and the flapper valve referred to in the referenced service bulletins. We find that the possibility of a lightning strike as a potential source of ignition is not a significant possibility, due to the other conditions that would have to be present along with the lightning strike. Therefore, we find no change to the final rule is necessary in this regard.

One commenter asks us to increase the minimum clearance between the compensator for the Simmonds FQIS and fuel tank structure from 0.10 inch, as specified in the referenced service bulletins, to 0.25 inch. The commenter states that clearance of 0.25 inch would account for the “sloshing” of fuel in the tank. The commenter notes that its findings indicate that, should the compensator be moved 0.25 inch due to such “sloshing,” and if the flapper check valve is fully extended, contact between these two components could occur. The commenter also notes that it has inspected three airplanes in its fleet for such contact between the compensator and flapper check valve and has found no evidence of such contact.

We do not concur to increase the minimum clearance. We find that 0.10 inch of clearance, as specified in the referenced service bulletins, is adequate to avoid contact between the compensator and flapper check valve, even accounting for the “sloshing” of fuel in the fuel tank. We note that any “sloshing” of fuel that would push the compensator in the direction of the flapper check valve would drive the flapper check valve to the closed position. No change to the final rule is necessary in this regard.

One commenter asks us to add a requirement to the proposed AD to inspect the compensator and flapper check valve for damage. The commenter advises that the added requirements should include damage limits and provide a technical source for accomplishment of any necessary corrective action.

We do not concur. The commenter provides no technical data to support its request. We find that accomplishment of the actions required by this AD will prevent contact between the compensator and the flapper check valve and remove the potential arcing path inside the left and right main fuel tanks. We note that normal maintenance practices include removing the compensator and flapper check valve and replacing them with new parts if any damage is found. No change to the final rule is necessary in this regard.

One commenter asks us to increase the estimated cost impact stated in the proposed AD. Whereas, in the proposed AD, the FAA estimates that the proposed actions will take 5 work hours, the commenter indicates that the proposed actions will take 12 work hours. The commenter notes that a second person is required for safety reasons any time work is accomplished in the fuel tank.

We do not concur to increase the estimated cost impact. The estimate that 5 work hours will be needed to complete the required actions is based on the best data available to date, as provided to the FAA by the airplane manufacturer. We note that this cost estimate is consistent with the manpower estimate in the referenced service bulletin, which states that 1.25 work hours per person (4 persons total) is necessary to do the bracket installation. No change to the final rule is necessary in this regard.

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

There are approximately 938 Model 757 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 607 airplanes of U.S. registry will be affected by this AD, that it will take approximately 5 work hours per airplane to accomplish the required installation (not including time for gaining access and closing up), and that the average labor rate is $60 per work hour. Required parts will cost approximately $404 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $427,328, or $704 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-9-81, -82, -83, and -87 series airplanes; Model MD-88 airplanes; and Model MD-90-30 series airplanes; was published in the Federal Register on August 29, 2001 (66 FR 45657). That action proposed to require replacement of certain main landing gear (MLG) shock strut piston assemblies with new or serviceable, improved assemblies, which would constitute terminating action for the requirements of certain other ADs.

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

One commenter requests that the FAA clarify the compliance threshold stated in paragraph (a) of the proposed AD. The commenter states that the compliance time stated in the proposed AD, “Before the accumulation of 30,000 total landings, or within 5,000 landings after the effective date of this AD, whichever occurs later,” should be revised to “(Before) the accumulation of 30,000 total landings . . . on an MLG shock strut piston, or within 5,000 landings after the effective date of this AD, whichever occurs later.” The commenter states that it has airplanes in its fleet with more than 40,000 total landings that are equipped with affected MLG shock strut pistons that have accumulated fewer than 1,000 landings. The commenter points out that, as written, the proposed AD would require discarding a piston with significantly fewer than 30,000 landings (i.e., the compliance threshold for the proposed replacement) because the piston is installed on an airplane with more than 30,000 total landings. The commenter requests that the compliance threshold be stated in terms of total landings on the MLG shock strut piston.

The FAA concurs that the compliance time stated in paragraph (a) of this AD needs to be clarified. As the commenter notes, the compliance threshold should be stated in terms of total accumulated landings on the MLG shock strut piston assembly, not in terms of total landings of the airplane. Paragraph (a) of this AD has been revised accordingly. Also, as a result of this change, we find it necessary to clarify what compliance time must be used if an operator cannot determine the number of landings on an MLG shock strut piston assembly. Thus, we have added the following statement to paragraph (a) of this AD: “If the MLG shock strut piston is not serialized or the number of landings on the piston cannot be conclusively determined, consider the total number of landings on the piston assembly to be equal to the total number of landings accumulated by the airplane with the highest total number of landings in the operator's fleet.”

Three commenters request that we revise the proposed AD to make the AD consistent with AD 2001-09-18, amendment 39-12225 (66 FR 23840, May 10, 2001), which is one of the related rulemaking actions identified in the proposed AD. The commenters note that the compliance time in the proposed AD, the later of 30,000 total landings or 5,000 landings after the effective date, conflicts with a provision in AD 2001-09-18 that allows a 60,000-total-landing threshold for replacement of the MLG shock strut pistons, as long as repetitive inspections are performed. The commenters ask us to add the same provisions for continuing repetitive inspections into the proposed AD. One commenter suggests this could be accomplished by making the proposed AD a supersedure of AD 2001-09-18. Two commenters remark that AD 2001-09-18 gives operators more flexibility, in that it allows deferral of the replacement of the MLG shock strut piston assembly. One of these commenters also notes that allowing repetitive inspections to continue for a longer time reduces the cost impact on operators by allowing them to use spares already in their inventory. Also with regard to the cost impact, two commenters stress that the compliance times in the proposed AD would be economically burdensome for operators. The commenters state that the requirements of AD 2001-09-18 provide a level of safety that is equal to the level that would be provided by the proposed AD.

We do not concur. We note that AD 2001-09-18 addresses fatigue cracking only in the area of the torque link lugs of the MLG pistons. This AD addresses fatigue cracking not only in the area of the torque link lugs but also in the small radius on the base of the jackball of the MLG shock strut piston assembly. Therefore, we find that the requirements of AD 2001-09-18 are not equivalent to those of this AD. No change to the final rule is necessary in this regard.

One commenter, the airplane manufacturer, requests that we revise the proposed AD to reduce the compliance time from the later of 30,000 total landings or 5,000 landings after the effective date of this AD, to the later of 30,000 total landings or 2,500 landings after the effective date of this AD. The commenter states that it did not anticipate that operators would have the option to continue using affected MLG pistons beyond the compliance time recommended in the service bulletins referenced in the proposed AD, 30,000 total landings or 5,000 landings after January 31, 2000 (the date of the original issue of the service bulletin), whichever is later. The commenter notes that the proposed grace period of 5,000 landings after the effective date of this AD will apply to many airplanes, because operators with insufficient tracking information must assume that all MLG pistons in the affected fleet have accumulated landings equivalent to the airplane in their fleet with the most landings, and many of these “fleet leader” airplanes have already accumulated more than 30,000 total landings. The commenter asserts that its analysis suggests that the probability of cracking of the jackball of the piston increases with continued usage of the piston beyond 30,000 total landings. Consistent with this analysis, the commenter notes that certain relevant service bulletins that describe procedures for inspections of the jackball of the MLG piston currently specify reduced inspection intervals for MLG pistons with more than 35,000 total landings. The commenter states that the FAA's proposed compliance time for the replacement that would be required by the proposed AD will make it necessary for the airplane manufacturer to revise these relevant inspection service bulletins to specify significantly shorter repetitive inspection intervals for pistons with even more than 35,000 total landings, to ensure the continued safety of these airplanes until the replacement in this AD is accomplished.

We do not concur with the commenter's request to reduce the grace period for the replacement required by this AD. In developing an appropriate compliance time for the replacement required by this AD, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but also the average utilization of the affected fleet and the availability of required parts. At the average usage rate for the affected airplanes, the grace period of 2,500 landings recommended by the commenter would allow about 500 days for the airplane to be modified according to the requirements of this AD. We find that this may not allow operators sufficient time to get required parts and accomplish this AD on all affected airplanes in their fleets. We have determined that the grace period of 5,000 landings, as proposed, represents an appropriate interval of time wherein an ample number of required parts will be available and affected operators may comply with this AD. Considering the nature of the MLG piston failures at the jackball that have been reported, the FAA finds that such a compliance time will not adversely affect the safety of the affected airplanes. No change to the final rule is necessary in this regard.

One commenter requests that we revise the applicability statement of the proposed AD to identify the specific part numbers for the MLG shock strut piston assemblies affected by this AD. While the commenter provides no specific reason for its request, we infer that the commenter is requesting this change for clarity. We do not concur that such a change is necessary. The applicability statement of this AD refers to the McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), MD-88, and MD-90-30 airplanes listed in the two service bulletins referenced in this AD. Because no more affected airplanes will be produced, these service bulletins clearly identify all affected airplanes and all affected part numbers for the MLG shock strut piston assembly. No change to the final rule is necessary in this regard.

Three commenters request that we revise the Cost Impact section of the proposed AD to more accurately state the costs associated with the proposed AD. The Cost Impact section of the proposed AD states, “The manufacturer has committed previously to its customers that it will bear the cost of replacement parts, subject to the conditions in the warranty. As a result, the cost of those parts is not attributable to this proposed AD.” All three commenters disagree with this statement and ask the FAA to revise the proposed AD to include the potential cost of replacement parts. The commenters point out that, while Model MD-90-30 airplanes are covered for the cost of replacement parts associated with Boeing Service Bulletin MD-90-32-031, Revision 01, dated April 25, 2001, the other airplane models subject to the proposed AD will be covered for the full cost of replacement parts associated with Boeing Service Bulletin MD-80-32-309, Revision 01, dated April 25, 2001, only if the airplane was in warranty as of June 1991. The commenters explain that, for airplanes not covered by the warranty provisions, the cost of the replacement MLG pistons will be up to $255,438, plus, according to one commenter, $8,000 for necessary replacement bearings, seals, etc., for a total cost of up to $263,438. One of the commenters states that a review of the records of U.S.-registered airplanes subject to the proposed AD shows that approximately 320 airplanes are not covered by warranty, and the operators of these airplanes will have to purchase the replacement parts at this price.

We partially concur with the request to include the cost of replacement parts. As we stated in the proposed AD, the provision of required parts is “subject to the conditions in the warranty.” We do not have access to, and it is not feasible to consider, the individual warranty contracts between the airplane manufacturer and the operators of affected airplanes.

For the benefit of affected operators, however, we will acknowledge the cost of replacement parts for airplanes that are not fully covered by warranty provisions in this AD. Also, based on the current price of replacement parts, we have also revised our cost impact estimate for the approximately 320 U.S.-registered airplanes not covered by warranty provisions.

In addition to the comments on the cost of parts, one of the commenters also contends that its experience shows that the proposed replacement will take 56 work hours, rather than the 28 estimated in the proposed AD. The commenter provides no data to substantiate its estimate. We are not revising the work-hour estimate in this AD. The estimate that 28 work hours will be needed for the required replacement is based on the best information currently available from the airplane manufacturer. We note that this figure is consistent with the estimate provided in the service bulletin. No change to the final rule is necessary in this regard.

Also, another commenter takes issue with the boilerplate statement, “The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.” The commenter asserts that this statement “has the potential to mislead operators to the true cost of the proposed rule.” The commenter states that it has already done the intent of the proposed AD on many airplanes in its fleet.

We infer that the commenter is requesting that we remove this statement from the AD. We do not concur. The statement to which the commenter refers is included in nearly all ADs and declares what assumptions we have made in estimating the cost of the requirements of the AD on the U.S.-registered fleet of airplanes. We use these assumptions because it is not feasible for the FAA to determine how many airplanes are already in compliance with a particular service bulletin, or whether an operator would accomplish a particular service bulletin if we didn't issue an AD to require it. Therefore, we calculate the cost impact estimate based on the assumption that the action has not been done on any U.S.-registered airplanes before the effective date of the AD, and that no operator would do the action if the FAA did not issue an AD to require it. We recognize that, in nearly all cases, some operators will have already done the AD requirements before the effective date of the AD, so the future economic impact of that AD on U.S. operators may be less than the estimated cost stated in the AD. No change to the final rule is necessary in this regard.

The FAA has revised the applicability statement in this final rule to identify model designations as published in the most recent type certificate data sheet for the affected models. We have also revised related model designations in the preamble.

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

There are approximately 1,380 Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), MD-88, and MD-90-30 airplanes of the affected design in the worldwide fleet. The FAA estimates that 820 airplanes of U.S. registry will be affected by this AD, that it will take approximately 28 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour.

The manufacturer has committed previously to its customers that it may bear the cost of replacement parts, subject to the conditions in the warranty. For the approximately 500 U.S.-registered airplanes covered by the manufacturer's warranty provisions, the cost of required parts is not attributable to this AD. Therefore, based on the figures stated above, the cost impact of the AD on U.S. operators of these airplanes is estimated to be $840,000, or $1,680 per airplane.

Based on information received from the airplane manufacturer, up to 320 U.S.-registered airplanes subject to this AD may NOT be covered by the manufacturer's warranty provisions. For these airplanes, required parts will cost approximately $263,438 per airplane. Based on these figures, the cost impact of the AD on U.S. operators of these airplanes is estimated to be $84,837,760, or $265,118 per airplane.

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

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

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

GE has completed an updated low cycle fatigue (LCF) analysis for the CF6-80E1A2 LPTR shaft, part number (P/N) 1778M39P01, and has established a new reduced life cycle limit of 17,900 cycles-since-new (CSN) for this shaft. In January 2001, the FAA became aware of GE's in-process analysis and material testing of LPTR shaft, P/N 1778M39P01. The FAA approved temporary revisions (TR's) to Chapter 5, Life Limits, of the engine manual, to incorporate revised life limits for this shaft based on initial analytical results. The original life limit of 20,000 CSN for this part was last published in the engine manual revision dated February 15, 2001. TR 05-0019, dated March 7, 2001, revised this life limit from 20,000 CSN to 11,300 CSN. Subsequent issues of the engine manual, published August 15, 2001 and February 15, 2002, carried forward this revised lower life limit. The FAA chose to wait for the final analytical results and the updated material test data before taking action to mandate a lower life limit. This wait was made possible due to the young age of the affected parts. The high time shaft has accumulated less than 7,000 CSN at this time, which is well below the interim limit of 11,300 CSN and final approved life limit. The FAA now approves GE's final analytical results and the reduced life limit of 17,900 CSN. GE issued TR 05-0030 on February 28, 2002 to revise the life limits section of the engine manual for CF6-80E1A2 LPTR shaft, P/N 1778M39P01, to 17,900 CSN. Although interim publications of the engine manual showed lower life limits for this part, those limits were not mandated by an AD. Therefore, an AD is now required to mandate the approved 17,900 CSN life limit.

Although this affected engine model is not used on any airplanes that are registered in the United States, the possibility exists this engine model could be used on airplanes that are registered in the United States in the future. This AD is being issued to prevent LCF cracking and failure of the LPTR shaft due to exceeding the life limit, which could result in an uncontained engine failure and damage to the airplane. This AD requires replacing CF6-80E1A2 LPTR shafts, P/N 1778M39P01, at or before reaching the new reduced life cycle limit of 17,900 CSN.

Since there are currently no domestic operators of this engine model, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NE-06-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Schering-Plough Animal Health Corp., 1095 Morris Ave., P.O. Box 3182, Union, NJ 07083, filed NADA 141-190 that provides for use of CLINACOX (0.2 percent diclazuril), BMD (10, 25, 30, 40, 50, 60, or 75 grams per pound (g/lb) bacitracin methylene disalicylate), and 3-NITRO (45.4, 90, 227, or 360 g/lb roxarsone) Type A medicated articles to make combination drug Type C medicated feeds for broiler chickens. The Type C feeds contain 0.91 g/ton diclazuril, 50 or 100 to 200 g/ton bacitracin methylene disalicylate, and 22.7 to 45.4 g/ton roxarsone and are used for the prevention of coccidiosis caused by Eimeria tenella , E. necatrix , E. acervulina , E. brunetti , E. mitis (mivati) , and E. maxima ; as an aid in the prevention (at 50 g/ton bacitracin) or control (at 100 to 200 g/ton bacitracin) of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin; and for increased rate of weight gain, improved feed efficiency, and improved pigmentation. The NADA is approved as of December 14, 2001, and the regulations are amended in 21 CFR 558.198 to reflect the approval.

The regulations in 21 CFR 558.76 and 558.530 are also being amended to cross-reference approved combinations. 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 each 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.

The majority of the Department of State's consular fees are established pursuant to the general user charges statute, 31 U.S.C. 9701, and/or U.S.C. 4219, which, as implemented through Executive Order 10718 of June 27, 1957, authorizes the Secretary of State to establish fees to be charged for official services provided by embassies and consulates. Fees established under these authorities include fees for immigrant and nonimmigrant visa processing, for fingerprints, and for overseas citizens services. In addition, a number of statutes address specific fees: Passport application fees (including the cost of passport issuance and use) are authorized by 22 U.S.C. 214, as are fees for the execution of passport applications. (This provision was amended on November 29, 1999, by Public Law 106-113, to permit collection of a nonrefundable application fee subject to promulgation of implementing regulations, which are at 22 CFR parts 51 and 53.) Section 636 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009-703-704 (Sept. 30, 1996), authorizes establishment of a diversity visa application fee to recover the full costs of the visa lottery conducted pursuant to Sections 203 and 222 of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1153, 1202. Nonimmigrant visa reciprocity fees are authorized and, in fact, generally required, pursuant to Section 281 of the INA, 8 U.S.C. 1351. Notwithstanding the general rule of reciprocity, however, a cost-based, nonimmigrant visa processing fee for the machine readable visa (MRV) and for a combined border crossing and nonimmigrant visa card (BCC) (22 CFR 41.32) is authorized by Section 140(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Public Law 103-236 (April 30, 1994). Certain persons are exempted by law or regulation from payment of specific fees. These exemptions are noted in the fee schedule and include the nonimmigrant visa fee exemptions set forth in 22 CFR 41.107 for certain individuals who engage in charitable activities or who qualify for diplomatic visas. In addition, aliens under age 15 are in certain circumstances entitled to a combined MRV/BCC for a statutorily established fee of $13, which is below the full cost of service, pursuant to Section 410 of Title III of the Commerce, Justice, State Appropriations Act enacted as part of the Omnibus FY 1999 Appropriations Act, Public Law 105-277 (Oct. 21, 1998). Various statutes also permit the Department to retain some of the consular fees it collects. These are, at present, the MRV and BCC fees, the passport expedite fee, the fingerprint fee, the J Visa Waiver fee, and the Diversity Visa Lottery fee. Authority to retain the Affidavit of Support fee has existed in the past and may be renewed.

With the exception of nonimmigrant visa reciprocity fees, which are established based on the practices of other countries, all consular fees are established on a basis of cost and in a manner consistent with general user charges principles, regardless of the specific statutory authority under which they are promulgated. As set forth in OMB Circular A-25, the general policy underlying user charges is that a reasonable charge should be made to each identifiable recipient for a measurable unit or amount of government service or property from which the user derives a special benefit. The OMB guidance covers all Federal Government activities that convey special benefits to recipients beyond those that accrue to the general public. The Department of State is required to review consular fees periodically to determine the appropriateness of each fee in light of applicable provisions of OMB Circular A-25. While services of direct benefit to individuals, organizations or groups should be paid for by the users rather than by taxpayers in general, the guidelines state that services performed for the primary benefit of the general public or the U.S. Government should be supported by tax revenues. The changes set forth in the proposed Schedule of Fees reflect these guidelines.

The last major revision of the Schedule of Fees was in 1998. Consistent with OMB Circular A-25, from September 1999 to October 2001, the Department conducted a cost-of-service study to determine the current direct and indirect costs associated with each consular service the Department provides, so that the Schedule could be updated. The study was supervised by the Bureau of Consular Affairs and performed with the assistance of an independent contractor. The contractor and Department staff surveyed and visited domestic and overseas consular sites handling a representative sample of all consular services worldwide in FY 2000. This review attempted to identify the fully allocated costs of consular services (direct and indirect). The results of the review indicated that a fee established on the basis of the average cost of a consular officer's time should be $235 per hour. This hourly rate is used in the proposed schedule to recover the cost of services that are infrequently provided and that may require very different expenditures of time depending on the unique circumstances of the service, such as providing a certificate of American ownership for a yacht, a service that directly benefits an individual. In situations where services are provided often enough to develop a reliable estimate of the average time involved, however, the schedule generally sets a flat service fee. In either case, the fee is designed to recover some or all—but not more than—actual fully allocated costs the Department expects to incur over the period that the Schedule will be in effect. When the fee is set below costs, the remaining cost is either recovered through allocation to related services for which are fees charged, or will be covered by taxpayers through appropriations. (Detailed information concerning the methodology of the study is available from the Bureau of Consular Affairs.) Based on this effort and subsequent analysis, the Department is now proposing adjustments to the Schedule of Fees. Major changes to the schedule are discussed below.

Passport fees for execution and application services (“execution” and “issuance” fees, under the current Schedule) have been raised. The $30 (currently $15) execution fee for first-time applicants and others who must apply in person covers all costs associated with providing this service, both domestically and abroad. It is retained by non-Department acceptance agencies when such agencies are used. One passport application fee will be charged for each first-time and each renewal application: $55 for applicants age 16 or over and $40 for applicants under 16. Although the processing and issuance of a child's passport is more labor-intensive and therefore more costly, the shorter, five-year validity of a child's passport is the basis for charging the lower, $40 fee. A revision of 22 CFR 51.61 is included in this rule to reflect the elimination of different passport application fees for first-time and renewal applications and the requirement that the execution fee be paid at the time of application rather than issuance.

The new passport fees will fully recover the cost of domestic and overseas passport application processing. In addition, consistent with long-standing Department practice, the fee will recover the cost of all emergency citizens services performed abroad, including assistance to U.S. citizens in cases of arrest, detention, death, serious illness or accident abroad. Also covered are the costs of certain non-emergency citizens services such as passport amendments and the voluntary registration of U.S. citizens at posts abroad.

The Schedule increases the passport expedite fee from $35 to $60. This fee pays for all of the additional costs associated with expediting the processing and issuance of an applicant's passport at a U.S. Passport Agency, so that the applicant can receive a passport in three days or less, instead of a domestic timeframe of approximately five weeks for mail-in applications that are not expedited. No overseas costs have been included in the fee for this service as the fee is not charged abroad, where the smaller volume of passport applications and other factors allow the Department's posts generally to act on all passport applications in three days or less, eliminating the need to differentiate between standards of service.

The $45 fee for this service has been held below cost because it is almost always associated with a passport application. Remaining costs have been allocated to the passport application, both adult and minor.

This item has been eliminated from the Schedule because the fee was reduced from $100 to 0, effective March 30, 2001, by Public Notice 3625, Federal Register , March 30, 2001 (66 FR 17360), for the reasons explained therein.

The Schedule increases the application fee for a Report of Birth of a U.S. Citizen Abroad from $40 to $65. The actual cost of performing the service is considerably higher, especially when the parents have lived abroad for long periods of time and their prior residency in the United States must be confirmed if their ability to transmit citizenship to their children is subject to a residency transmission requirement. It is in the U.S. Government's interest, however, to have U.S. citizens documented as early as possible. Keeping the fee below cost is intended to ensure that the fee itself does not serve as a disincentive to having young children documented as U.S. citizens. Remaining costs have been allocated to the passport application, both adult and minor. Fees for duplicate copies of Reports of Birth will be charged as presented in the Schedule under Documentary Services.

The primary responsibility of U.S. consular officers abroad is the protection and welfare of U.S. citizens. No-fee services performed in instances of arrests, missing persons, child custody inquiries and destitution (requiring repatriation and/or emergency dietary assistance loans) are listed on the Schedule for the information of the U.S. citizen traveler. As noted in the discussion of the passport fee, the costs for these services will continue to be allocated to the passport fee, consistent with long-standing Department practice. This ensures that any U.S. citizen traveling abroad may obtain emergency consular services without regard to ability to pay for the actual services rendered.

No-fee services provided to the next-of-kin after the death of a U.S. citizen abroad have been consolidated under one item. The costs of these services are allocated to the passport fee.

The $235 hourly rate for consular time plus costs incurred will be charged for making arrangements for a deceased non-U.S. citizen family member. It replaces the current $700 flat fee for assistance in arranging transshipment of a foreign national's remains and in providing related documentary services. Assistance in the case of a non-U.S. citizen's death is provided only under special circumstances, e.g., when a U.S. citizen relative requires assistance or no representative of the deceased's country of nationality is present to render assistance. The Schedule sets a $60 fee for the issuance of a Consular Mortuary Certificate on behalf of a non-U.S. citizen, based on the average time required to prepare the document.

The Schedule combines all estate services for U.S. citizens under a single item. Consular officers have authority to take possession of and inventory estates and to oversee the final disposition of estates of U.S. citizens who die abroad. This authority is generally exercised, often on an interim basis, in the absence of a legal representative or in emergency situations. Expenses incurred in settling estates are generally paid from estate proceeds or must be paid by the estate representative. The costs of consular time and incidental expenses attributable to estate work are generally allocated to the passport fee because of the circumstances in which these services are provided and because the amount of consular time required usually is small. An additional reason for this approach is that most estates abroad are small and the net proceeds from disposition of the assets would not be sufficient to pay for even the minimal consular time usually involved. Thus, the Schedule has no separate fee for most estate work. In those few estate cases that do require significant consular time or expenditures, however, the Department has determined it is appropriate to charge for consular time and/or to require reimbursement of expenses. (In such cases, overseeing the sale and final disposition of the estate—disbursing funds and carrying out other legally related estate business—is often more appropriately handled by a private attorney or executor.)

The Schedule raises to $65 the nonimmigrant Machine Readable Visa (MRV) application processing and Border Crossing Card fees. These fees pay for all costs associated with the processing and issuance of either an MRV or a machine-readable combined border crossing card and nonimmigrant visa (BCC). The five-year border crossing card fee for qualified Mexican children under the age of 15 remains $13, in accordance with Public Law 105-277 (see discussion under BACKGROUND above). Costs not recovered through the $13 fee have been reallocated to the fee for the 10-year MRV/BCC, as authorized by Public Law 105-277.

An exemption from the MRV fee has been added for U.S. government employees traveling on official business. A parallel exemption has been added under the nonimmigrant visa issuance fee, which is reciprocal, and varies according to the fees charged U.S. citizens by the applicant's country of origin. The U.S. government is deemed the primary beneficiary of this exemption because it applies to non-U.S. citizen U.S. government employees who travel to the United States on U.S. government orders to carry out their duties as employees.

The Schedule sets one immigrant visa application processing fee of $335 to replace the current Schedule's two separate fees for immigrant visa application processing ($260) and immigrant visa issuance ($65). The Department determined that charging one fee would simplify fee collection and enhance both administrative efficiency and convenience to the applicant. Some of the costs of related services (e.g., Affidavit of Support review, returning resident status determinations) have also been allocated to the immigrant visa application fee to keep the fees for those services at lower levels. Because a single processing fee will be charged, the Department has also reviewed and is changing its regulation regarding the circumstances in which a refund will be allowed (22 CFR 42.71). Since there will be no issuance fee, refunds will no longer be related to whether or not an immigrant visa is issued. Given that the actual work involved in processing an immigrant visa application has already commenced by the time the application fee is paid, the fee will be non-refundable unless the application is not or cannot be adjudicated as a result of action by the U.S. Government.

The current $75 Diversity Visa (DV) Lottery surcharge for the immigrant visa application will increase to $100. The Department has legal authority to establish the surcharge, which is paid only by persons who “win” the lottery and apply for a DV visa, at a level sufficient to cover the entire cost of running the lottery. The full exercise of this authority would lead to a much higher surcharge because the number of winning applicants (roughly 55,000) is much smaller than the total number of lottery entrants (recently about 10 million). The surcharge has been kept below the legally authorized amount. The Department notes that DV applicants must also pay the immigrant visa application processing fee; that the $100 surcharge will represent an increase in this surcharge of 33 percent; and that the $100 surcharge will cover the Department's direct (but not indirect) costs of running the lottery. The Department believes that a $100 surcharge is therefore reasonable. Costs not recovered by the surcharge have been allocated to appropriations.

The Schedule raises to $65 the Affidavit of Support Review Fee, currently $50. This fee is charged domestically for all Affidavits of Support reviewed at the National Visa Center to ensure that they are properly completed before they are forwarded to a consular post for adjudication. The fee has been held below the cost of service; costs not recovered through the fee have been allocated to the immigrant visa application.

While higher than current fees, the fees for determining returning resident status ($360, currently $50), and for a transportation letter for legal permanent residents of the U.S. ($300, currently $100) will represent only approximately 50% of the Department's full costs of providing these services. Costs not covered by the fees for these special visa services have been allocated to the immigrant visa application-processing fee. This allocation allows the special visa service fees to be lower and is appropriate given that the users of the special visa services generally are persons who have previously been issued immigrant visas, and that someone issued an immigrant visa may reasonably expect to use such services at some point in the future in an unforeseen situation.

The fee charged for a waiver of the two-year residency requirement for J-visa holders has increased to $230. This fee has been set to recover all of the costs associated with providing this service.

The current $25 fee for fingerprinting, when required in connection with a visa application, will increase to $85 to cover all costs incurred in providing this service abroad, including FBI costs billed to the Department of State for fingerprint processing.

For documentary services, the Schedule establishes a new fee structure that the Department expects will be easy to administer and that will lower the direct cost to customers. It establishes a consistent per-item fee for all documentary services. Customers requiring a service multiple times as part of a single transaction (e.g., notarization of a bill of sale and five copies, or notarization of three documents required for a single real estate transaction) will be charged one fee for the initial seal and a reduced fee for each subsequent seal. The current fees for documentary services are $55 for notarials, $20 for certifications, $10 for additional certified copies, and $32 for authentications. The Schedule sets a fee of $30 for the first seal for a notarial, certified copy, copy or certified document from the Department's Vital Records Section, and $20 for each additional seal. A fee of $30 is charged for each authentication of a U.S. or foreign official seal or signature. Costs not covered by the fees will be offset by appropriations. The Department notes that there is a long-standing, statutory requirement that consular officers perform notarial services abroad. Such services are available for minimal fees in the United States, and public concern over the Department's notarial fees when they were set in 1998 to ensure that the actual users pay the full cost of service has demonstrated a widespread expectation that notarial and similar services will be available from the U.S. Government to overseas users for fees that are not significantly higher than domestic fees, even if the overseas fee is well below the actual cost of service. Thus, the Department has concluded that allocating part of the cost of notarials to the general taxpayer is appropriate.

Under the Schedule, documentary fee exemptions for U.S. federal, state and local government agencies are combined under one item. One new exemption has been added: No fee will be charged for notarial services performed with respect to endorsing U.S. Savings Bonds Certificates. The U.S. Government is a beneficiary of the U.S. Savings Bond program, and imposing a fee on the individual bondholders for this service in the past has at times adversely affected persons of limited resources, thereby potentially discouraging use of this investment vehicle.

The Schedule separates judicial assistance services from documentary services. A fee of $650 is charged for processing letters rogatory, judicial assistance cases under the Foreign Sovereign Immunities Act, and certificates for return of letters rogatory executed by foreign officials. The $650 fee covers the estimated costs incurred in a routine case. A flat rate of $475 is charged for making arrangements for taking one or more depositions that will run continuously in a single location on a single day so that only one set of reservations for facilities, reporting, and other services need be made. This fee also reflects the estimated cost of a normal case. It will be charged again if a deposition for which the fee has been paid is cancelled and rescheduled. When a consular official must also attend or take the deposition or execute a commission to take testimony, the Department proposes to charge, in addition, the hourly rate for the time spent performing this service and for expenses actually incurred. A flat fee of $235 is charged for swearing in witnesses for telephone depositions, reflecting that a consular officer will generally have to reserve an hour of time for this service. If the consular officer must remain on the line while the deposition proceeds, an hourly rate of $235 will be charged for each hour or part thereof over the first hour. The $60 fee for providing seal and certification of depositions is based on an estimate of the average time needed to perform this service.

The Schedule includes two exemptions from fees for judicial assistance services:

The Schedule will recover all costs associated with the processing and issuance of shipping and seamen services by charging the proposed $235 hourly rate for consular time plus any expenses incurred. These services include, but are not limited to, recording a bill of sale of a vessel purchased abroad, renewal of a marine radio license, and issuance of a certificate of American ownership. As these services are not performed on any routine basis, an average fee could not be determined. In paying the hourly rate for consular time, the beneficiary of the service will bear the full cost.

The fee for setting up and maintaining a trust account increases from $25 to $30. It is Department policy to keep this fee below the cost of service because it is generally provided to individuals who have limited resources or who face unusual obstacles in transferring funds abroad. The remaining costs have been allocated to the passport application fee.

Consular time charges increase to $235 per hour and reflect the actual direct and indirect cost of service as determined by the Cost of Service Study conducted by the Bureau of Consular Affairs. The Department notes that this rate is high in part because maintaining consular officers and facilities abroad, including secure work and living environments, is costly.

The Department is publishing this rule as a final rule after it was published as a proposed rule on March 28, 2002 (67 FR 14895), Public Notice 3950.

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 as defined in 5 U.S.C. 601(6).

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 the 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. In addition, OMB has been provided with an information copy of the proposed regulation.

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 effective date of this regulation is June 1, 2002. The implementation date for Passport Services fees, Item Numbers 1, 2, 3 and 6, is August 19, 2002, following the peak travel season, and is intended to accommodate the U.S. traveling public.

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 an 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 . The permit application was not received in time to publish an NRPM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with firework displays. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Chicago has determined firework launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platforms will help ensure the safety of person and property at these events and help minimize any risks.

The safety zone will encompass a portion of the Monroe Street Harbor including a portion of two of the Grant Park anchorage areas (33 CFR 110.83(a) and (d)), the entrance to the Monroe Street Harbor, as well as a portion outside the breakwall for Monroe Street Harbor.

In order to avoid effectively suspending anchorage areas 110.83(a) and 110.83(d) in their entirety, this rule creates temporary anchorage areas 110.83(e) and 110.83(f) which omit from the areas described in (a) and (d) only those portions of the suspended anchorage areas impacted by the safety zone. For the duration of this rule, any vessel anchored or moored in those portions of the suspended anchorage areas that overlap the safety zone must comply with lighting requirements for vessels at anchor.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Chicago or his designated on scene representative. The Captain of the Port Chicago's designated on scene representative will be the Patrol Commander. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

This temporary 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). The Coast Guard expects the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This determination is based on the minimal time that vessels will be restricted from the zone, and the zone is in an area where the Coast Guard expects insignificant adverse impact to mariners from the zones activation.

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 temporary rule will affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of an activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The temporary zone is only in effect for a few hours on the day of the event. Vessel traffic can safely pass outside the proposed safety zone during the event. Traffic may be allowed to pass through the safety zone under Coast Guard escort with the permission of the Captain of the Port Chicago. Before the effective period, we will issue maritime advisories widely available to users of the Port of Chicago by the Ninth Coast Guard District Local Notice to Mariners, Marine information broadcasts, and facsimile broadcasts may also be made.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 temporary rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.

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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary 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.

The Coast Guard has 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 considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

We have analyzed this temporary 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 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 an NPRM. In keeping with the requirements of 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . The precise location of the event necessitating promulgation of this safety zone and other logistical details surrounding the event were not finalized until a date fewer than 30 days prior to the event. Delaying the effective date of this rule would be contrary to the public interest because doing such would prevent the Coast Guard from maintaining the safety of the participants of the event and users of the waterway.

This safety zone is necessary for Ralph's Half Ironman California, which will take place on May 19, 2002 starting at 6:30 a.m. (PST) and ending at 9:30 a.m. (PST). The event involves participant swimmers and the staff members of the race. This safety zone is defined as the waters of Oceanside Harbor, CA, including the entrance channel. This temporary safety zone is necessary to provide for the safety of the participants (swimmers), spectators, and sponsor vessels of the Ralph's Half Ironman California and to protect other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

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).

Due to the temporary safety zone's short duration of three hours for just one day, the Coast Guard expects the economic impact of this rule to be so minimal that 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 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.

For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of size.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Ensign Adam Birst, U.S. Coast Guard Marine Safety Office San Diego at (619) 683-6495.

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 and have determined that this rule 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 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 concern 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.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are establishing a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

On March 18, 2002, we published a notice of proposed rulemaking (NPRM) entitled Security Zone; Portland Rose Festival on Willamette River in the Federal Register (67 FR 11961). 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), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The comment period for this rule ended just 2 business days before May 6, 2002—the date 30 days before the effective date of the rule. While this miscalculation prevented us from having the rule published by May 6, we are still able to provide several weeks notice of the effective date of the rule. The dates of the Rose Festival are fixed, and cannot be modified, therefore it would be contrary to public interest for us not to make the rule effective starting June 5, 2002. This security zone is necessary to provide for the safety and security of vessels participating in the 2002 Portland Rose Festival in the navigable waters of the United States.

The Coast Guard did not receive any comments on the NPRM for this rule. This rule, for safety and security concerns, will control vessel movements in a regulated area surrounding vessels participating in the 2002 Portland Rose Festival. U.S. Naval Vessels are covered under 33 CFR 165 Subpart G—Protection of Naval Vessels; however, the Portland Rose Festival is a major maritime event that draws many different vessels including Navy, Coast Guard, Army Corps of Engineers, and Canadian Maritime Forces. It is crucial that the same level of security be provided to all participating vessels. Entry into this zone is prohibited unless authorized by the Captain of the Port, Portland or his designated representatives.

Commercial vessels that typically transit this section of the Willamette River are pre-designated and will suffer only minor inconveniences. Recreational vessels may suffer from extended delays and can anticipate a vessel inspection. Recreational vessels are encouraged to avoid this area. Recreational vessels will be allowed into the zone on a case-by-case basis following extensive security measures, and as operations permit.

Coast Guard personnel will enforce this security zone and the Captain of the Port may be assisted by other federal, state, or local agencies. The Coast Guard intends to enforce this security zone during its effective period starting with arrival of the first vessel participating in the 2002 Portland Rose Festival to the City of Portland's Waterfront Park and extending until the last such participating vessel departs the Waterfront Park.

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 expectation is based on adequate resources allowing vessel approvals from the Captain of the Port or his designated representatives to transit through the regulated area. For the above reasons, the Coast Guard only anticipates minor economic impact.

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 might be small entities: the owners or operators of vessels intending to transit or anchor in this portion of the Willamette River. The likely impacts to small entities include minor time delays, potential inspections, and possibly non-entrance if the Captain of the Port or his designated representatives sense the vessels participating in the Rose Festival are threatened. The security zone will not have a significant economic impact because adequate resources will allow vessels timely approval from the Captain of the Port or his designated representatives to transit through the regulated area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 will 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 might 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 the temporary security zone will not last longer than one week in duration. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

This section provides additional information by addressing the following questions:

As required under Subchapter V of the Clean Air Act (“the Act”), as amended (1990), EPA has promulgated regulations which define the minimum elements of an approvable state operating permits program and the corresponding standards and procedures by which the EPA will approve, oversee, and withdraw approval of state operating permits programs (see 57 FR 32250 (July 21, 1992)). These regulations are codified at 40 CFR part 70. Pursuant to subchapter V, generally known as title V, states developed, and submitted to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources.

The Indiana Department of Environmental Management (IDEM) submitted its title V operating permits program (title V program) for approval on August 10, 1994. EPA promulgated interim approval of the Indiana title V program on November 14, 1995 (60 FR 57188), and the program became effective on December 14, 1995. Subsequently, EPA promulgated full approval of the Indiana title V program effective November 30, 2001. EPA published this action in the Federal Register on December 4, 2001 (66 FR 62969).

Pursuant to its authority at 40 CFR 70.10(b), EPA published a NOD for Indiana's title V operating permit program on December 11, 2001 (66 FR 64039). The NOD was based upon EPA's finding that several state requirements do not meet the minimum federal requirements of 40 CFR part 70 and the Act for program approval. Indiana has adopted rule revisions to resolve all of the deficiencies identified in the December 11, 2001 NOD. These rule revisions became effective, as a matter of state law, on January 19, 2002. Indiana submitted some of these rule changes as a revision to its title V operating permit program on February 7, 2002. Indiana also included, in the February 7, 2002 submittal, other regulatory revisions that strengthen Indiana's program. EPA is approving the Indiana rule revisions included in the February 7, 2002 submittal in today's action. On March 5, 2002, Indiana submitted a rule revision addressing one of the deficiencies identified in the NOD for approval into the State Implementation Plan (SIP). EPA will take action on this rule revision in a separate Federal Register document. The public will have an opportunity to comment on this rule revision when EPA publishes the Federal Register document taking action on the March 5, 2002 SIP submittal.

Indiana has revised 326 IAC 2-7-1(21)(A) to establish insignificant activity emission thresholds for nitrogen oxides (NO X ) and volatile organic compounds (VOC). Previously, the definition of insignificant activity in the Indiana rule did not include specific insignificant activity threshold levels for NO X and VOC. The rule referred to the limits in 326 IAC 2-1.1-3(d)(1) to establish the insignificant activity threshold levels for these two pollutants. The threshold levels in this provision was 10 tons per year for both NO X and VOC. EPA considers this an unacceptably high threshold for insignificant activities and, as a result, identified this issue as a deficiency in the December 11, 2001 NOD for the Indiana title V program. The revised 326 IAC 2-7-1(21)(A) language establishes a VOC insignificant activity threshold of 3 pounds per hour or 15 pounds per day and a NO X insignificant activity threshold of 5 pounds per hour or 25 pounds per day. These threshold levels are equivalent to the VOC and NO X thresholds that EPA originally approved as part of the November 14, 1995, interim approval of Indiana's title V program. In today's action, EPA is approving this rule language as a revision to the Indiana title V program. This revision satisfies Indiana's requirement to correct an identified program deficiency and resolves the issue published in the NOD.

In order to remedy a problematic regulation that impacted Indiana's program but was not identified by EPA in the NOD, Indiana has revised 326 IAC 2-7-1(21)(K) to clarify the applicability of the permit modification process described in 326 IAC 2-7-12 which applies to a modification of an existing insignificant activity or the addition of an insignificant activity to a title V source. Under the previous version of this rule, all modifications that qualified as an insignificant activity were exempted from the 326 IAC 2-7-12 modification requirements. This revised provision allows insignificant activities to avoid the permit modification requirements only if the existing permit includes all requirements and associated monitoring applicable to the activity and if the activity is not a modification under any provisions of title I of the Act. EPA considers this provision to be consistent with 40 CFR 70.5(c), which does not require insignificant activities to be included in permit applications unless information on the activity is necessary to determine applicability of, or to impose, any applicable requirement or to determine fees. In today's action, EPA is approving this revision to IAC 2-7-1(21)(K) as a revision to the Indiana title V program.

In order to remedy a problematic regulation that impacted Indiana's program but was not identified by EPA in the NOD, Indiana revised its definition of trivial activity in 326 IAC 2-7-1(40). This definition was established pursuant to the July 10, 1995, EPA memorandum titled “White Paper for Streamlined Development of Part 70 Permit Applications”, which states that “there is flexibility inherent in § 70.5 to tailor the level of information required in the application to be commensurate with the need to determine applicable requirements. The EPA believes this inherent flexibility encompasses the idea that certain activities are clearly trivial (i.e., emissions units and activities with specific applicable requirements and with extremely small emissions) and can be omitted from the application.”

Indiana's trivial activity definition includes an emission threshold of one pound per day of potential uncontrolled emissions of any criteria pollutant for an activity to be considered trivial. 326 IAC 2-7-1(40)(B) through (Q) lists activities which shall be considered trivial for title V permit application purposes. The July 10, 1995, white paper includes examples of activities which EPA believes should normally qualify as trivial. This list is intended only as a starting point for states and is not a comprehensive list of what EPA accepts as trivial activities. Many of the activities listed in 2-7-1(40) are listed in the July 10, 1995, white paper as examples of trivial activities. EPA agrees that the remaining 2-7-1(40) activities are inherently trivial. The exclusion of trivial activities from title V permit applications will allow sources and the state to direct their resources towards permitting activities that have significant environmental impacts.

Under the previous version of this rule, all activities listed in 326 IAC 2-7-1(40) qualified as trivial and were exempted from inclusion in the source's title V permit application without regard to information needed to document applicable requirements and compliance status. Indiana's revised trivial activity definition states, in 326 IAC 2-7-1(40)(R), that trivial activities are excluded from the permit modification requirements of 326 IAC 2-7-12 only if the existing permit includes all requirements and associated monitoring applicable to the activity and if the activity is not a modification under any provisions of title I of the Act. In addition, the revision to 326 IAC 2-7-1(40) states that trivial activities need not be included in title V permit applications provided that the applicant documents applicable requirements and compliance status as required by the permit application provisions of the state title V rule. These provisions provide assurance that title V permits include all applicable requirements and associated monitoring for units and activities that may qualify as trivial under the 326 IAC 2-7-1(40) definition. In today's action, EPA is approving Indiana's definition of trivial activity in 326 IAC 2-7-1(40) as a revision to the Indiana title V program.

In order to remedy a problematic regulation that impacted Indiana's program but was not identified by EPA in the NOD, Indiana has revised 326 IAC 2-7-4(c) to remove rule language which allowed sources to include in their permit application an explanation of any proposed exemptions from otherwise applicable requirements. Since title V does not provide for exemptions from applicable requirements, this language was not consistent with the requirements of title V and 40 CFR part 70. In today's action, EPA is approving the removal of this rule language as a revision to the Indiana title V program.

Indiana revised 326 IAC 2-7-4(c)(10) and (11) to remove rule language that allows sources to certify compliance with alternative or streamlined requirements instead of the underlying applicable requirements. This issue is identified and discussed in more detail in the December 11, 2001 NOD for the Indiana title V program. In addition, Indiana revised 326 IAC 2-7-5(3) to remove rule language that refers to alterative or streamlined requirements with respect to monitoring, recordkeeping, and reporting. In today's action, EPA is approving the removal of this language as a revision to the Indiana title V program. This revision satisfies Indiana's requirement to correct an identified program deficiency and resolves the issue published in the NOD.

Indiana revised 326 IAC 2-7-5(1) to remove rule language stating that an exceedance of a permit limit and the corresponding operating parameter shall constitute a single violation. This rule provision restricted the state's enforcement authority to restrain or enjoin and to assess a civil penalty for the violation of any permit condition as required by 40 CFR 70.11. EPA identified this provision as a title V deficiency in the December 11, 2001 NOD for the Indiana title V program. In today's action, EPA is approving the removal of this language as a revision to the Indiana title V program. This revision satisfies Indiana's requirement to correct an identified program deficiency and resolves the issue published in the NOD.

Indiana revised 326 IAC 2-7-5(1) to remove rule language which allowed exceedances of emission limits during startups, shutdowns, and malfunctions on a case-by-case basis. This would have allowed the permitting authority to establish, through the title V permitting process, limits which exceeded applicable requirements. EPA identified this provision as a title V deficiency in the December 11, 2001 NOD for the Indiana title V program. In today's action, EPA is approving this rule revision as a revision to the Indiana title V program. This revision satisfies Indiana's requirement to correct an identified program deficiency and resolves the issue published in the NOD.

In order to remedy a problematic regulation that impacted Indiana's program but was not identified by EPA in the NOD, Indiana has revised 326 IAC 2-7-11(a)(7) to remove language that allowed changes to monitoring, maintenance, or recordkeeping requirements to be processed as an administrative permit amendment if the changes were “not environmentally significant” and not required by an applicable requirement. This rule revision will prevent relaxations in monitoring, maintenance, or recordkeeping requirements from being processed as an administrative permit amendment. In today's action, EPA is approving the removal of this language as a revision to the Indiana title V program.

Indiana has added new rule language in 326 IAC 2-7-12(b)(4) which requires minor modifications to be subject to the public notice provisions of 326 IAC 2-7-17. This revision restores the minor permit modification requirements that were in effect when EPA granted interim approval to the Indiana title V program and is necessary because minor permit modifications qualify for a permit shield under the Indiana regulations. During EPA's original review of Indiana's title V program, which resulted in granting interim approval on November 14, 1995, the Indiana regulations required minor modifications to be subject to public review equivalent to that required by 40 CFR 70.6, 70.7 and 70.8, and allowed such modifications to qualify for a permit shield. In reviewing that original regulation, EPA determined that the permit shield was acceptable in this situation because of the availability of public review. Subsequent to the November 14, 1995, interim approval, Indiana modified its regulations to remove the public notice requirement from the minor modification provision. However, the state did not remove the permit shield provision. Therefore, EPA identified this provision as a title V deficiency in the December 11, 2001 NOD for the Indiana title V program. In today's action, EPA is approving Indiana's new rule language in 326 IAC 2-7-12(b)(4) as a revision to the Indiana title V program. This revision satisfies Indiana's requirement to correct an identified program deficiency and resolves the issue published in the NOD.

In order to remedy a problematic regulation that impacted Indiana's program but was not identified by EPA in the NOD, Indiana has revised 326 IAC 2-7-16 to remove language which states that an emergency constitutes an affirmative defense to an action brought for noncompliance with a health-based emission limitation. This rule revision is consistent with the requirements in 40 CFR 70.6(g), which restricts the emergency provision to noncompliance with technology-based emission limitations. In today's action, EPA is approving the removal of this language as a revision to the Indiana title V program.

326 IAC 2-7-24 of Indiana's title V rule allows for the establishment of streamlined requirements for units subject to multiple requirements. This section of the state rule was established subsequent to the November 14, 1995 EPA action granting interim approval to the Indiana title V program. EPA has not previously approved this section of the rule as a revision to the Indiana title V program. The March 5, 1996, EPA memorandum titled “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program” explains how permitting authorities may streamline multiple, overlapping requirements into one permit condition that will assure compliance with all requirements. Indiana's rule requires streamlined limits to be at least as stringent as all subsumed requirements and to be enforceable as a practical matter. Permits issued with streamlined limits must include citations to all subsumed requirements and must include any additional terms and conditions necessary to assure compliance with the streamlined limit and all subsumed requirements. Permits containing streamlined limits must be issued pursuant to the permit issuance, renewal, or significant modification requirements of Indiana's title V rule. EPA finds this rule provision to be consistent with 40 CFR part 70 and, in today's action, is approving 326 IAC 2-7-24 as a revision to the Indiana title V program.

Indiana had two additional NOD issues listed in the December 11, 2001, Federal Register notice. Resolution of these two issues required revisions to portions of the Indiana rules that are not part of the state's title V regulations. Indiana has adopted these required revisions to their state rules and the revisions became effective, as a matter of state law, on January 19, 2002. Since these rule revisions are not part of the state's title V regulations, they were not included in the February 7, 2002, submittal and they will not be included in this action as revisions to the Indiana title V program. As explained in further detail below, the revision addressing one of these NOD issues will require no further action by EPA. Indiana has submitted, as a SIP revision, the other NOD issue and EPA will address that submittal in a separate Federal Register document.

Indiana rule 326 IAC 2-1.1-3(d) allowed the state to exempt from the title V minor or significant modification requirements sulfur dioxide, NO X , and VOC emission increases of up to 10 tons per year and carbon monoxide emission increases of up to 25 tons per year. In addition, 326 IAC 2-1.1-3(g) allows the state to exempt from the title V minor or significant modification requirements lead emissions increases of up to 5 tons per year. Because 40 CFR 70.6(e) does not allow the permitting authority to create exemptions from the permit modification requirements, Indiana's program did not meet the program approval requirements of title V and 40 CFR part 70. Indiana has corrected this deficiency by removing language from 326 IAC 2-1.1-3(d) and 326 IAC 2-1.1-3(g) which apply these provisions to title V sources and title V modifications. This rule revision became effective on January 19, 2002.

This rule provision is intended for minor sources and is not part of Indiana's title V regulations. Therefore, it will not be included as a change to the Indiana title V program. Since this rule provision was never approved into the Indiana State Implementation Plan (SIP), no SIP revision is required to accommodate this correction. EPA considers this program deficiency, which was identified in the NOD, to be resolved.

Indiana's construction permits expire upon issuance of a valid title V permit; therefore, the construction permit conditions do not exist independently of title V permits. Applicable requirements must exist independently of title V permits. Allowing the underlying applicable requirements to expire could cause Indiana to lose the authority to include such conditions in renewed title V permits. Because Indiana's rules did not assure that construction permit conditions exist independently of title V permits, this issue was identified in the December 11, 2001 NOD as not meeting the program approval requirements of title V and 40 CFR part 70.

Indiana subsequently revised the state regulations in 326 IAC 2-1.1-9.5 to say that “any condition established in a permit issued pursuant to a permitting program approved into the state implementation plan shall remain in effect until: (1) The condition is modified in a subsequent permit action; or (2) the emission unit to which the condition pertains permanently ceases operation.” “Subsequent permit action” in this rule refers to a permit action taken pursuant to Indiana's construction permit authority. Since title V authority cannot modify existing applicable requirements, including construction permit conditions, “subsequent permit action” does not include permit actions taken pursuant to Indiana's title V program. This rule provision is not part of Indiana's title V regulations and, therefore, will not be included as a change to the Indiana title V program. Indiana submitted this rule provision for approval into the Indiana SIP on March 5, 2002, and EPA will take action on this submittal in a separate Federal Register document. The public will have an opportunity to comment on this provision when EPA publishes a Federal Register notice taking action on the March 5, 2002, SIP submittal.

The EPA is granting approval to the Indiana title V operating permits program revisions submitted by IDEM on February 7, 2002. These revisions meet the minimum program requirements of 40 CFR part 70, resolve issues raised in EPA's December 11, 2001 NOD of the Indiana title V program, and strengthen Indiana's program.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 final approval 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 an unfunded mandate nor does it 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have federalism implications because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the state and the federal government established in the Act.

This final approval is also 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 a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing state operating permit programs submitted pursuant to title V of the Act, EPA will approve state programs provided that they meet the requirements of the Act and EPA's regulations codified at 40 CFR part 70. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a state operating permit program for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a state program that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

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

This is a summary of the Federal Communications Commission's Memorandum Opinion and Order, FCC 02-82, adopted on March 14, 2002, and released on April 18, 2002. The full text of this Memorandum Opinion and Order is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. In the Report and Order and Further Notice of Proposed Rule Making (“ R&O ” and “ FNPRM ”), 66 FR 86, January 2, 2001, in this proceeding, the Commission adopted rules and policies to implement Sections 309(j) and 337 of the Communications Act of 1934, as amended by the Balanced Budget Act of 1997. This Memorandum Opinion and Order (“ MO&O ”) addresses petitions for reconsideration and related pleadings regarding certain of our decisions in the R&O.

2. The major decisions in this MO&O are as follows:

• The Commission affirms that the Balanced Budget Act amendments to Section 309(j) do not preclude the Commission from using licensing mechanisms for private services that permit the filing of mutually exclusive license applications if the Commission determines that it is in the public interest to do so.

• Commission reiterates that the public safety radio services exemption in Section 309(j) applies to services, rather than specific users. Moreover, we affirm the dominant use test set forth in the R&O as the means to determine whether the particular service qualifies for the public safety radio services exemption. We also retain and clarify the definition for “private internal radio service” set forth in the R&O .

• The Commission retains the five-year holding period as a requirement for modification of an 800 MHz PLMRS authorization to permit commercial use.

• The Commission affirms the decision in the R&O that an applicant must demonstrate that there is no public safety spectrum available to satisfy the public safety service use before it can be granted a waiver pursuant to Section 337.

• The Commission reiterates whether a Section 337 application is in the public interest will be determined on a case-by-case examination of various factors, including the stage of the competitive bidding process with respect to the requested frequencies.

3. The MO&O also updates § 1.227 of the Commission's Rules, regarding mutually exclusive applications, to reflect that the Commission no longer utilizes random selection processes to resolve such conflicts, and has indicated that it will rely on existing regulatory tools to resolve rare instances of mutually exclusive applications in services that are not subject to competitive bidding. Finally, it revises § 90.621 permitting modification, assignment or transfer of private land mobile radio licenses for commercial use, to require such applications to be filed in accordance with the rules and procedures for commercial stations, and to clarify that a licensee that has modified its authorization for use in a commercial operation, or a commercial operator that acquired PLMR channels via assignment or transfer, may at anytime submit a modification application to indicate that the subject frequencies will be used in a PLMR system, provided that the licensee meets the applicable eligibility requirements.

4. As required by the Regulatory Flexibility Act (RFA), see 5 U.S.C. 604, the Commission has prepared a Supplemental Regulatory Flexibility Analysis of the possible impact of the rule changes contained in this Memorandum Opinion and Order on small entities. The Supplemental Regulatory Flexibility Analysis is set forth in paragraph six. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this Memorandum Opinion and Order, including the Supplemental Final Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

5. This Memorandum Opinion and Order does not contain any new or modified information collection. Therefore, it is not subject to the requirements for a paperwork reduction analysis, and the Commission has not performed one.

6. For further information concerning this Memorandum Opinion and Order, contact Karen Franklin of the Public Safety and Private Wireless Division at (202) 418-0680, TTY (202) 418-7233, Wireless Telecommunications Bureau, Federal Communications Commission, Washington, DC 20554. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by contacting Jenifer Simpson at (202) 418-0008, TTY (202) 418-2555. This Memorandum Opinion and Order can be downloaded at http://www.fcc.gov/Wireless/Orders/2001.

7. As required by the Regulatory Flexibility Act (RFA), Initial Regulatory Flexibility Analyses (IRFA) were incorporated in the Notice of Proposed Rule Making (NPRM) and Report and Order and Further Notice of Proposed Rule Making (R&O and FNPRM) in WT Docket 99-87. The Commission sought written public comment on the proposals in the Notice and R&O and FNPRM. This Supplemental Final Regulatory Flexibility Analysis (SFRFA) contained in this Memorandum Opinion and Order (MO&O) is limited to matters raised on reconsideration or clarification with regard to the R&O and FNPRM and addressed in this MO&O. This SFRFA conforms to the RFA.

8. This proceeding was initiated to secure public comment on proposals to implement Sections 309(j) and 337 of the Communications Act of 1934 (“Communications Act”), as amended by the Balanced Budget Act of 1997 (“Balanced Budget Act”). The Balanced Budget Act significantly revised Section 309(j) of the Communications Act, which is the principal statutory provision that governs the Commission's auction authority for the licensing of radio services.

9. No reconsideration petitions/comments were filed in direct response to the previous Final Regulatory Flexibility Analysis (FRFA). However, the Commission has reviewed general comments that may impact small businesses. The Report and Order in this proceeding determined that the statutory changes in Section 309(j)(1) and exemptions in Section 309(j)(2) are considered in light of the Commission's continuing obligation under Section 309(j)(6)(E) to avoid mutual exclusivity and to fulfill the public interest objectives enumerated in Section 309(j)(3). The Commission also concluded that in non-exempt services, the Commission's authority under the Balanced Budget Act continues to permit it to adopt licensing processes that result in the filing of mutually exclusive applications where the Commission determines that such an approach would serve the public interest. The Commission concluded that in addition to other licensing mechanisms we have used previously, we should consider the use of band manager licensing as a future option for private as well as commercial services. In the Report and Order , the Commission determined that the public safety exemption applies only to services in which these public safety uses, i.e., protection of safety of life, health, and property within the meaning of Section 309(j)(2)(A), comprise the dominant use of the spectrum. Further, the Commission decided that subject to certain safeguards, 800 MHz Business and Industrial/Land Transportation licensees should be allowed to modify their licenses to permit commercial use, or to assign or transfer their licenses to Commercial Mobile Radio Service (CMRS) operators for commercial use. The Report and Order provided that Section 337 relief should only be available if the applicant demonstrates that there is no available public safety spectrum in any band in the geographic area where the public safety use is proposed. Moreover, the Commission concluded that it would consider the state of the competitive bidding process when the Section 337 application is received as relevant to our determination of whether grant of the waiver request and the associated application(s) is in the public interest.

10. In this Memorandum Opinion and Order , we affirm the Commission's determinations. Moreover, we modify the Commission's Rules to require Section 337 applicants to enter the service code applicable to the type of service they intend to provide. We also note that despite the type of service code used, the Section 337 applicant will be required to meet the interference protection standards in our rules that are applicable to the subject spectrum in order to satisfy Section 337(c)(1)(B). Additionally, we modify our rules to require that applications filed to modify 800 MHz Private Land Mobile Radio (PLMR) channels for use in CMRS systems be processed in accordance with CMRS rules and procedures instead of PLMR rules and procedures. In that connection, we clarify that a licensee that has modified its authorization for use in a CMRS operation, or a CMRS operator that acquired PLMR channels via assignment or transfer, may at any time submit a modification application to indicate that the subject frequencies will be used in a PLMR system, provided that the licensee meets the applicable eligibility requirements.

11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Nationwide, as of 1992, there were approximately 275,801 small organizations.

12. The rule changes effectuated by this Memorandum Opinion and Order apply to licensees who provide public safety services pursuant to Section 337 of the Communications Act of 1934, as amended (the Act), and private land mobile radio licensees in the 800 MHz band that are regulated under Part 90 of the Commission's Rules.

13. Private land mobile radio systems serve an essential role in a vast range of industrial business, land transportation and public service activities. These radios are used by companies of all sizes that operate in all U.S. business categories. Because of the vast array of PLMR users, the Commission had not developed, nor would it be possible to develop, a definition of small entities specifically applicable to PLMR users. For the purpose of determining whether a licensee is a small business as defined by the Small Business Administration (SBA), each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,087,276 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. Further, because any entity engaged in a commercial activity is eligible to hold a PLMR license, these rules could potentially impact every small business in the U.S.

14. Public Safety radio services include police, fire, local governments, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the Commission estimates that 81,600 (91 percent) are small entities.

15. This MO&O makes two minor revisions to the compliance requirements in Parts 1 and 90 of the Commission's Rules to conform the application and licensing procedures in the private land mobile and public safety radio services with the policies described in the MO&O . One of the amendments requires processing of modification applications submitted to convert the use of 800 MHz PLMR channels to use in a CMRS operation in accordance with our CMRS rules and procedures. The other amendment to our rules requires a Section 337 applicant to enter the service code applicable to the type of service the applicant intends to provide.

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

17. The Part 1 rule adopted in this MO&O clarifies our policies with respect to the processing of applications for licenses in the public safety radio services under Section 337 of the Act. The revision to Part 1 of the Commission's Rules provides guidance toward accurate completion of FCC Form 601. This form requires the applicant to provide a service code. Although we did consider allowing a Section 337 applicant to enter a service code commensurate with the frequency allocation, other applicants, frequency coordinators or other licensees would not know the type of service provided on the subject frequency. Moreover, we observe that selection of a service code is not a unique requirement for small business, Section 337 applicants; nor does selection of one service code instead of another service code impose an additional economic burden.

18. The Part 90 regulation amended by this MO&O designates the rules governing CMRS operations as the rules by which applications submitted to convert the use of PLMR channels to use in CMRS operations will be processed rather than the rules governing Industrial/Land Transportation and Business channels. While a small business, 800 MHz PLMR licensee who chooses to convert use of its frequencies and operate a CMRS system may have to familiarize itself with the CMRS rules, it is incumbent upon this agency, inter alia , to make such regulations as it may deem necessary to prevent interference between stations. For instance, use of PLMR channels in CMRS operations must comply with the interference and technical requirements that govern CMRS operations to ensure harmful interference to existing licensees is avoided. Similarly, use of PLMR channels in CMRS operations must comply with the power limitations and other operational requirements imposed upon other CMRS operators to protect licensees from harmful interference.

Report to Congress: The Commission will send a copy of this Memorandum Opinion and Order , including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Memorandum Opinion and Order , including Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Memorandum Opinion and Order and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register . See 5 U.S.C. 604(b).

19. Pursuant to sections 1, 2, 4(i), 5(c), 7(a), 11(b), 301, 302, 303, 307, 308, 309(j) , 310, 312a, 316, 319, 323, 324, 332, 333, 336, 337, and 351 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157(a), 161(b), 301, 302, 303, 307, 308, 309(j), 310, 312a, 316, 319, 323, 324, 332, 333, 336, 337, and 351, the Balanced Budget Act of 1997, Public Law 105-33, Title III, 111 Stat. 251 (1997), and §§ 1.421 and 1.425 of the Commission's Rules, 47 CFR 1.421 and 1.425, that the Memorandum Opinion and Order is hereby ADOPTED.

20. Parts 1 and 90 of the Commission's Rules ARE AMENDED as set forth in Rule Changes, and that these Rules shall be effective July 15, 2002.

21. The Petitions for Reconsideration submitted by the following parties are DENIED: AllCom, LLC; American Automobile Association; Association of Public-Safety Communications Officials-International; Central Station Alarm Association; Cinergy Corporation; Commonwealth Edison Company; Consolidated Edison Company of New York; Entergy Corporation; Kansas City Power & Light Company; Omaha Public Power District; SCANA; Union Electric Company and Central Illinois Public Service Company and Ameren Energy Generating Company; United Telecom Council; and Xcel Energy, Inc.

22. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Memorandum Opinion and Order , including the Supplemental Regulatory Flexibility Analysis and Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

23. The Motion to Accept Supplemental Comments submitted by Industrial Telecommunications Association, Inc. is GRANTED.

This is a summary of the Commission's First Report and Order in ET Docket No. 98-153, adopted February 14, 2002, and released April 22, 2002. The complete text of this First Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC, and also may be purchased from the Commission's copy contractor, Qualex International, (202) 863-2893, 445 12th Street, SW, Room CY-B402, Washington, DC 20554.

1. In the First Report and Order (“ Order ”), the Commission amends part 15 of the rules to permit the marketing and operation of products incorporating ultra-wideband (UWB) technology. This Order includes standards designed to ensure that existing and planned radio services, particularly safety services, are adequately protected. We are proceeding cautiously in authorizing UWB technology, based in large measure on standards that the National Telecommunications and Information Administration (NTIA) found to be necessary to protect against interference to vital federal government operations. We are concerned, however, that the standards we are adopting may be overprotective and could unnecessarily constrain the development of UWB technology. Accordingly, within the next six to twelve months we intend to review the standards for UWB devices and issue a further rule making to explore more flexible technical standards and to address the operation of additional type of UWB operations and technology.

2. This has been an unusually controversial proceeding involving a variety of UWB advocates and opponents. These parties have been unable to agree on the emission levels necessary to protect Government-operated, safety-of-life and commercial radio systems from harmful interference. It is our belief that the standards contained in this Order are extremely conservative. These standards may change in the future as we continue to collect data regarding UWB operations. The analyses and technical standards contained in this Order are unique to this proceeding and will not be considered as a basis for determining or revising standards for other radio frequency devices, including other part 15 devices.

3. To ensure that UWB devices do not cause harmful interference, this Order establishes different technical standards and operating restrictions for three types of UWB devices based on their potential to cause interference. These three types of UWB devices are: (1) Imaging systems including Ground Penetrating Radars (GPRs) and wall, through-wall, surveillance, and medical imaging devices, (2) vehicular radar systems, and (3) communications and measurement systems. Generally, we are adopting unwanted emission limits for UWB devices that are significantly more stringent than those imposed on other part 15 devices; limiting outdoor use of UWB devices to imaging systems, vehicular radar systems and portable devices; and, limiting the frequency band within which certain UWB products will be permitted to operate. The operation of UWB devices is not permitted onboard aircraft, ships or satellites nor may UWB devices be used for the operation of toys. The frequency band of operation is based on the −10 dB bandwidth of the UWB emission. This combination of technical standards and operational restrictions will ensure that UWB devices coexist with the authorized radio services without the risk of harmful interference while we gain experience with this new technology. Specifically, the Order takes the following actions:

• Imaging Systems: Provides for the operation of GPRs and other imaging devices under part 15 of the Commission's rules subject to certain frequency and power limitations. All imaging systems are subject to coordination with NTIA through the FCC. Coordination of routine UWB operations shall not take longer than 15 business days from the receipt of the coordination request by NTIA. Operation in emergency situations involving the safety of life or property may occur without coordination provided a notification similar to that contained in 47 CFR 2.405(a)-(e) is followed by the operator. The manufacturers of the UWB devices will be required to inform the users of the coordination requirements. The operators of imaging devices must be eligible for licensing under part 90 of our rules, except that medical imaging devices may be operated by a licensed health care practitioner. Imaging systems include:

• Ground Penetrating Radar Systems: GPRs must be operated below 960 MHz or in the frequency band 3.1-10.6 GHz. GPRs operate only when in contact with, or within one meter of, the ground for the purpose of detecting or obtaining the images of buried objects. The energy from the GPR is intentionally directed down into the ground for this purpose. Operation is restricted to law enforcement, fire and emergency rescue organizations, to scientific research institutions, to commercial mining companies, and to construction companies.

• Wall Imaging Systems: Wall imaging systems must be operated below 960 MHz or in the frequency band 3.1-10.6 GHz. Wall-imaging systems are designed to detect the location of objects contained within a “wall,” such as a concrete structure, the side of a bridge, or the wall of a mine. Operation is restricted to law enforcement, fire and emergency rescue organizations, to scientific research institutions, to commercial mining companies, and to construction companies.

• Through-wall Imaging Systems: These systems must be operated below 960 MHz or in the frequency band 1.99-10.6 GHz. Through-wall imaging systems detect the location or movement of persons or objects that are located on the other side of a structure such as a wall. Operation is limited to law enforcement, fire and emergency rescue organizations.

• Surveillance Systems: Although technically these devices are not imaging systems, for regulatory purposes they will be treated in the same way as through-wall imaging systems used by police, fire and rescue organizations and will be permitted to operate in the frequency band 1.99-10.6 GHz. Surveillance systems operate as “security fences” by establishing a stationary RF perimeter field and detecting the intrusion of persons or objects in that field. Operation is limited to law enforcement, fire and emergency rescue organizations, to public utilities and to industrial entities.

• Medical Systems: These devices must be operated in the frequency band 3.1-10.6 GHz. A medical imaging system may be used for a variety of health applications to “see” inside the body of a person or animal. Operation must be at the direction of, or under the supervision of, a licensed health care practitioner.

• Vehicular Radar Systems: These are radar devices employing directional antennas and mounted on terrestrial transportation vehicles, and they must operate in the frequency band 22-29 GHz. The center frequency of the emission and the frequency at which the highest radiated emission occurs must be greater than 24.075 GHz. These devices are able to detect the location and movement of objects near a vehicle, enabling features such as near collision avoidance, improved airbag activation, and suspension systems that better respond to road conditions. Directional antennas or other methods must be used to attenuate the emissions above the horizontal plane in the 23.6-24.0 GHz band to protect passive space borne sensors.

• Communications and Measurement Systems: This category consists of a wide variety of other UWB devices, such as high-speed home and business networking devices as well as storage tank measurement devices under part 15 of the Commission's rules subject to certain frequency and power limitations. The devices must operate in the frequency band 3.1-10.6 GHz. The equipment must be designed to ensure that operation can only occur indoors or it must consist of hand held devices that may be employed for such activities as peer-to-peer operation. The term “hand held” refers to portable devices, such as a lap top computer or a PDA, that are primarily hand held while being operated and that do not employ a fixed infrastructure.

4. The attached regulations contain the specifications for the various operating parameters and technical standards being applied to UWB devices. In general, we have adopted the emission limits requested by NTIA. These limits consist of quasi-peak limits below 960 MHz, RMS average limits above 960 MHz, peak emission limits, and limits on the amount of energy conducted onto the AC power line. Specific measurement procedures also have been established to demonstrate compliance with these limits. For example, there are provisions to permit UWB devices to be tested with the use of anechoic shielding in place of a ground plane provided a suitable adjustment is made to the measured results. There also are provisions for testing ground penetrating radars and wall imaging systems with the antennas pointed at a 20 inch thick bed of dry sand. In addition, provisions have been made to permit peak emission levels to be measured using a resolution bandwidth ranging from 1 MHz to 50 MHz with the peak limit adjusted to a peak EIRP limit, in dBm, of 20 log (RBW/50) where RBW is the resolution bandwidth of the measuring instrument in megahertz. The average limits are based on measurements employing a 1 MHz resolution bandwidth, an RMS detector, and a one millisecond or less averaging time. In addition, special narrowband limits are applied to emissions falling within the 1164-1240 MHz and 1559-1610 MHz bands employed for the Global Positioning System.

5. There were a few other provisions addressed or implemented in this Order:

• Existing Part 15 Operation. We specified that transmitters operating under the provisions of 47 CFR 15.217-15.255 must contain their 20 dB bandwidth within the specified band of operation. This includes the effects of frequency sweeping, frequency hopping and other modulation techniques that may be employed as well as the frequency stability of the transmitter over variations in temperature and supply voltage.

• Existing Waivers. We extended the waivers issued to U.S. Radar, Time Domain, Zircon, and Kohler. Originally, these waivers were scheduled to expire upon effective date of this Order . Kohler requested a one year extension citing the time necessary to redesign its product, to test the redesigned product, and to modify its tooling. We sympathize with these concerns and believe that these problems also would affect other companies operating under a waiver. Accordingly, we extended all of the waivers until one year from the effective date of this Order .

• U.S. Government Operation of UWB Devices. When the part 15 regulations were amended in 1989, the Commission opened several frequency bands for unlicensed operation even though those bands were allocated for exclusive operation by the U.S. Government. The Commission took this action following an informal agreement with NTIA that similarly permitted it to operate equipment in exclusive non-government bands under the same part 15 standards. We will continue this policy, permitting the U.S. Government to operate in non-government frequency bands and in shared frequency bands under the part 15 standards. Accordingly, as a condition of their use of these bands U.S. Government specifications for UWB devices operated by the U.S. Government agencies in non-government or in shared frequency bands must conform to the standards and operating conditions that are being adopted in this Order . The operation in non-government band of UWB devices that are not in compliance with the technical and administrative provisions contained in this Order is not permitted without the concurrence of the FCC. We believe that this will result in a greater number of UWB devices operating under the same parameters, facilitating our studies to readdress the appropriateness of the UWB standards within the next six to twelve months.

• Exemption of Unlicensed PCS Transmitters from the Restricted Bands. Under the current rules, unlicensed PCS transmitters operating in the 1910-1930 MHz and the 2390-2400 MHz bands under Subpart D of part 15 are not subject to the restricted band provisions in 47 CFR 15.205.

However, this provision is not readily apparent due to the lack of a reference to Subpart C of part 15 in the cross-reference statement contained in 47 CFR 15.309. We are taking the opportunity provided by this Report and Order to clarify this current provision through an amendment to 47 CFR 15.205. As this amendment to the rules only clarifies an existing regulation, prior notice and comment are unnecessary.

6. The Commission adopted the following general guidance for compliance measurements of UWB devices. The procedures herein are based on the Commissions current understanding of UWB technology. Modifications may be necessary as measurement experience is gained. Except as otherwise described herein, measurements shall be made in accordance with the procedures specified in § 15.31(a)(6).

(1) Ground penetrating radars (GPRs) and wall imaging systems shall be tested under conditions that are representative of actual operating conditions. UWB devices intended for these types of application shall be compliance tested with the transducer at an operationally representative height above a twenty-inch thick bed of dry sand. The use of this medium, particularly for larger GPRs (e.g., those that are towed behind vehicles), will likely preclude the use of a turntable in the measurement procedure. For these cases, directionality gradients shall be analyzed and measurements shall be performed at a sufficient number of radials around the equipment under test to determine the radial at which the field strength values of the radiated emissions are maximized.

(2) Field strength measurements of through-wall imaging systems may be made with a 1/2 ″ thick gypsum or drywall board placed between the UWB device antenna and the measurement system antenna.

(3) RMS average field strength measurements, required for all frequencies above 960 MHz, shall be made using techniques to obtain true RMS average. This can be accomplished by using a spectrum analyzer that incorporates a RMS detector. The resolution bandwidth of the analyzer shall be set to 1 MHz, the RMS detector selected, and a video integration time of 1 ms or less is to be used. If the transmitter employs pulse gating, in which the transmitter is quiescent for intervals that are long compared to the nominal pulse repetition interval, all measurements shall be made while the pulse train is gated on. Alternatively, a true RMS level can be measured using a spectrum analyzer that does not incorporate a RMS detector. This approach requires a multiple step technique beginning with a peak detection scan of the UWB spectrum with a RBW of 1 MHz and a VBW of no less than 1 MHz. The resulting trace is to be used to identify the frequency and bandwidth of the five highest peaks in the spectrum. The analyzer is then to be placed in a “zero span” mode, with a RBW of 1 MHz, a video bandwidth equal to or greater than 1 MHz, and a detector selected that does not distort or smooth the instantaneous signal levels (e.g., a “sample” detector). With these settings, a minimum of ten independent instantaneous points, representing the highest amplitude readings, are to be obtained during the time that a pulse is present, in each 1 MHz frequency bin across the bandwidth of each of the five highest peaks identified in the previous step. Note that when the PRF of the device under test is less than the measurement bandwidth of 1 MHz, a significant number of samples may be required to ensure that a minimum of 10 samples with the pulse present are obtained. The data obtained from these measurements must then be post-processed to determine true RMS average power levels. The post-processing of the data can be performed manually or with the aid of appropriate software.

(4) On any frequency or frequencies below or equal to 960 MHz, the field strength shall be measured with equipment employing a CISPR quasi-peak detector function and related measurement bandwidths, unless otherwise specified.

(5) In the frequency bands 1164-1240 MHz and 1559-1610 MHz, average radiated field strength measurements shall be made with a resolution bandwidth of no less than 1 kHz, using techniques as described previously for determining true RMS average power levels.

(6) Peak radiated emission measurements shall be made using a spectrum analyzer with a 3 MHz resolution bandwidth and no less than a 3 MHz video bandwidth. The analyzer should be used in a maximum-hold trace mode. The peak power level expressed in a 3 MHz bandwidth and the frequency at which this level was measured shall be reported in the application for certification. A different resolution bandwidth between 1 MHz and 50 MHz may be employed with appropriate changes to the standard. If a resolution bandwidth greater than 3 MHz is employed, a detailed description of the test procedure, calibration of the test setup, and the instrumentation employed in the testing must be submitted to the Commission. It is recommended that measurements using a resolution bandwidth greater than 3 MHz be coordinated with the Commission's laboratory staff in advance of the submission for certification.

(7) Field strength measurements may be performed without the use of a ground plane; however, a factor of 4.7 dB must be added to the measurement results thus obtained.

(8) To the extent practicable, the device under test should be measured at the distance specified in the appropriate rule section. However, in order to obtain an adequate signal-to-noise ratio in the measurement system, radiated measurements may have to be made at distances less than specified. In these cases, measurements may be performed at a distance other than what is specified, provided: measurements are not made in the near field of the measurement or device under test antenna, except where it can be shown that near field measurements are appropriate due to the characteristics of the device; and, it can be demonstrated that the signal levels necessitated a measurement at the distance employed in order to be accurately detected by the measurement equipment.

(9) To the maximum extent possible, field strength measurements should be performed with the equipment under test positioned as it is intended to be used in actual operating conditions.

(10) Radiated field strength measurements must be made using the antenna to be employed with the UWB device under test. The measurement antenna must be sufficiently broad band to cover the frequency range of the measurements, and the use of multiple measurement antennas may be required. All measurement antennas used must be accurately calibrated and must demonstrate low phase dispersion over the frequency range of measurement. The orientation of the measurement antenna shall be varied to determine the polarization that maximizes the measured field strength.

(11) The spectrum to be investigated should include at least the fundamental emission and the secondary lobe regardless of the center frequency. In order to accomplish this, the frequency spectrum shall be investigated from the lowest frequency generated within the device, without going below 9 kHz, up to the frequency range shown in § 15.33(a) of the FCC rules or up to an upper frequency defined by adding three divided by the pulse width in seconds to the center frequency in Hz, whichever is greater. The frequency range in § 15.33(a) is based on the center frequency unless a higher frequency, e.g., a carrier frequency, is generated within the device. There is no requirement to measure emissions beyond 40 GHz provided the center frequency is less than 10 GHz; beyond 100 GHz if the center frequency is at or above 10 GHz and below 30 GHz; or beyond 200 GHz if the center frequency is at or above 30 GHz.

7. The Regulatory Flexibility Act of 1980, as amended (RFA) 1 requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.”  2 The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 4 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 5

8. In this First Report and Order, we are amending part 15 of our rules to permit the marketing and operation of new products incorporating ultra-wideband (“UWB”) technology. UWB devices operate by employing very narrow or short duration pulses that result in very large or wideband transmission bandwidths. UWB devices have the capability to provide for significant benefits for public safety, businesses and consumers. With appropriate technical standards, UWB devices can operate on spectrum occupied by existing radio services without causing interference, thereby permitting scarce spectrum resources to be used more efficiently.

9. We note that the Aircraft Owners and Pilots Association (AOPA) along with the National Business Aviation Association (NBAA) commented that the impact on small entities could not be estimated at this time. They added that their constituency substantially consists of small entities, comprising individuals and small businesses that are aircraft owners and operators. AOPA and NBAA expressed concern that there would be a severe and lengthy impact to aeronautical operations should the UWB standards prove to be inadequate to protect aeronautical communications, navigation and surveillance functions. However, as demonstrated in our analyses of the interference studies on GPS there should be no impact to aeronautical radio operations from UWB devices operating under the technical limits and operational requirements we are adopting. Therefore, we find that our action will have no negative impact on this industry and in fact will have a positive impact. Further, as noted in the text we currently are limiting the expansion of UWB, out of an abundance of caution, until such time as we gain additional experience. Thus, we expect that our actions do not amount to a significant economic impact at this time. Accordingly, we certify that the rules being adopted in this First Report and Order will not have a significant economic impact on a substantial number of small entities.

10. We will send a copy of the First Report and Order, including a copy of this final certification, in a report to Congress pursuant to the Congressional Review Act. 6 In addition, the First Report and Order and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration. 7

11. Authority for issuance of this First Report and Order is taken pursuant to Sections 4(i), 302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 302, 303(e), 303(f), 303(r), 304 and 307. Part 15 of the Commission's rules are amended and is effective July 15, 2002.

12. The waivers issued on June 25, 1999, to Time Domain Corporation, to U.S. Radar Inc., and to Zircon Corp. and the waiver issued on August 6, 2001, to Kohler Co. to permit the manufacture and marketing of their UWB devices remain in effect until one year from July 15, 2002.

13. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Shall Send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

Under Section 7 of the Endangered Species Act, NMFS issued a biological opinion (BiOp) dated October 19, 2001, on the pollock, Atka mackerel, and Pacific cod fisheries of the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA) (see ADDRESSES ). The BiOp concluded that the BSAI and GOA pollock, Atka mackerel, and Pacific cod fisheries, as prosecuted with the Steller sea lion protection measures, were not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions, nor adversely modify its critical habitat. The Steller sea lion protection measures accomplish three basic principles: (1) temporal dispersion of fishing effort, (2) spatial dispersion of fishing effort, and (3) groundfish fishing restrictions around Steller sea lion rookeries and haulouts.

NMFS published an emergency interim rule implementing the Steller sea lion protection measures and 2002 harvest specifications in the Federal Register on January 8, 2002 (67 FR 956), amended on May 1, 2002 (67 FR 21600), and this rule is effective through July 8, 2002.

At its April 2002 meeting, the North Pacific Fishery Management Council (Council) voted to recommend extension of the emergency interim rule. The preamble to the original emergency interim rule provides a detailed description of the purpose and need for the action and the 2002 harvest specifications. This action extends the expiration date of the emergency interim rule establishing Steller sea lion protection measures and 2002 harvest specifications (67 FR 956, January 8, 2002 and amended 67 FR 21600, May 1, 2002) from July 8, 2002, through December 31, 2002.

NMFS intends to complete proposed and final rulemaking later in 2002 to permanently implement Steller sea lion protection measures, as recommended by the Council at its October 2001 meeting. This extension of an emergency interim rule is necessary to prosecute the remainder of the 2002 groundfish fisheries with Steller sea lion protection measures after July 8, 2002.

Details concerning the basis for this action and the classification of the rulemaking are contained in the initial emergency rule and are not repeated here. Comments received regarding the January 8, 2002, emergency interim rule will be responded to in the proposed rulemaking for Steller sea lion protection measures.

The reasons justifying promulgation of the emergency interim rule on an emergency basis also make it impracticable and contrary to the public interest to provide notice and opportunity for comment on, or to delay for 30 days, the effective date of this emergency interim rule extension, under the applicable provisions of the Administrative Procedure Act, 5 U.S.C. 553(b) and (d).