The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest of forest and shade trees. The gypsy moth regulations (contained in 7 CFR 301.45 through 301.45-12 and referred to below as the regulations) restrict the interstate movement of regulated articles from generally infested areas to prevent the artificial spread of the gypsy moth.

In accordance with § 301.45-2 of the regulations, generally infested areas are, with certain exceptions, those States or portions of States in which a gypsy moth general infestation has been found by an inspector, or each portion of a State that the Administrator deems necessary to regulate because of its proximity to infestation or its inseparability for quarantine enforcement purposes from infested localities. Less than an entire State will be designated as a generally infested area only if: (1) The State has adopted and is enforcing a quarantine or regulation that imposes restrictions on the intrastate movement of regulated articles that are substantially the same as those that are imposed with respect to the interstate movement of such articles; and (2) the designation of less than the entire State as a generally infested area will be adequate to prevent the artificial interstate spread of infestations of the gypsy moth.

Section 301.45-3 of the regulations lists generally infested areas. In this rule, we are amending § 301.45-3(a) by adding nine counties in Wisconsin to the list of generally infested areas. As a result of this rule, the interstate movement of regulated articles from these areas will be restricted.

We are taking this action because, in cooperation with the State of Wisconsin, the United States Department of Agriculture conducted surveys that detected multiple life stages of the gypsy moth in Columbia, Florence, Forest, Green Lake, Jefferson, Langlade, Portage, Rock, and Wood Counties, WI. Based on these surveys, we determined that reproducing populations exist at significant levels in these areas. Eradication of these populations is not considered feasible because these areas are immediately adjacent to areas currently recognized as generally infested and are, therefore, subject to reinfestation.

This rulemaking is necessary on an emergency basis because of the possibility that the gypsy moth could be artificially spread to noninfested areas of the United States, where it could cause economic losses due to the defoliation of susceptible forest and shade trees. 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 rule 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.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

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. ).

In an interim rule effective October 29, 1999, and published in the Federal Register on November 4, 1999 (64 FR 60088-60092, Docket No. 99-080-1), we amended the regulations in “Subpart Citrus Canker” (7 CFR 301.75 through 301.75-16, referred to below as the regulations) to allow citrus fruit produced outside the quarantined areas to be moved into a quarantined area for packing and then moved from that quarantined area to any destination in the United States, including commercial citrus-producing areas. The interim rule provided that citrus fruit produced outside the quarantined areas, if moved into a quarantined area for packing, must be moved and handled according to specific conditions designed to prevent the artificial spread of citrus canker, including conditions to prevent its commingling with, and possible contamination by, citrus fruit produced within a quarantined area.

We solicited comments on the interim rule for 60 days ending on January 3, 2000. We received three comments by that date. They were from State agricultural agencies and a citrus industry organization. While two of the commenters supported the provisions of the interim rule, all three commenters expressed specific concerns. These are addressed below.

All three commenters expressed concern that the description of quarantined areas in § 301.75-4 of the regulations was not current and did not, therefore, reflect all the areas in which citrus canker has been detected in Florida. This, the commenters stated, could result in the continuing spread of citrus canker due to the lack of restrictions on the movement of regulated articles from areas affected with citrus canker but not under Federal quarantine.

Despite close monitoring by Animal and Plant Health Inspection Service (APHIS) inspectors and frequent updates to the citrus canker regulations, unavoidable delays in the Federal rulemaking process occasionally result in a lag between the detection of citrus canker in specific areas and the addition of those areas to the list of quarantined areas in § 301.75-4(a). While there may be some delay in listing specific areas in the regulations, paragraph (b) of § 301.75-4 does provide that the Administrator may designate any non-quarantined area as a quarantined area upon giving written notice of this designation to the owner or persons in possession of the non-quarantined area. Thereafter, regulated articles may be moved interstate from that area only in accordance with the regulations. Given that the movement restrictions and other requirements of the regulations apply to growers, packers, and other regulated entities as soon as APHIS provides them with written notice, which we do following the detection of citrus canker in a new area, we do not believe that the delay between detection of the disease in a new area and that area's inclusion in the list of quarantined areas in the regulations detracts from the effectiveness of our regulatory program.

All three commenters asked that we specify how we will ensure compliance with the provisions of the interim rule and explain what penalties there will be for noncompliance. One of the commenters suggested that provisions for ensuring compliance be incorporated into the regulations and that the penalties for noncompliance be specified.

The interim rule provides that regulated fruit not produced in a quarantined area but moved into a quarantined area for packing may be subsequently moved out of the quarantined area only if, in addition to other conditions provided in § 301.75-8(b), the regulated fruit is accompanied by a limited permit or a certificate issued in accordance with § 301.75-12. The regulations define a limited permit as an official document of the U.S. Department of Agriculture (USDA) authorizing the interstate movement of a regulated article from a quarantined area, but restricting the areas of the United States into which the regulated article may be moved. A certificate is an official document of the USDA authorizing the interstate movement of a regulated article from a quarantined area into any area of the United States. Under § 301.75-12, certificates and limited permits may be issued for the interstate movement of regulated articles only by an inspector or by persons operating under a compliance agreement. A compliance agreement is a written agreement between APHIS and a person engaged in the business of growing or handling regulated articles for interstate movement, in which the person pledges to comply with the regulations. If our inspectors have reason to believe there is not adequate compliance, we can refuse to issue the certificates and limited permits necessary for the movement of fruit. Additionally, the regulations provide that a certificate or limited permit may be withdrawn by an inspector if the inspector determines that any of the applicable requirements of the regulations have not been met. Similarly, any compliance agreement may be canceled by an inspector if the inspector finds that the person who entered into the compliance agreement has failed to comply with the regulations.

Packing plants inside a quarantined area that pack fruit produced in nonquarantined areas must maintain certain conditions, which include meeting specific cleaning, disinfection, and handling requirements, in addition to segregating fruit within the packing plant—i.e., keeping regulated fruit produced outside the quarantined areas physically separated from regulated fruit produced within quarantined areas. APHIS and the State of Florida monitor packing plants with frequent site visits to ensure that these conditions are being met. Certificates, limited permits, and compliance agreements may be suspended or withdrawn in cases where there is a pattern of noncompliance. While the Plant Protection Act (PPA) provides civil and criminal penalties for violations of the regulations, we believe that canceling or suspending compliance agreements is by itself an effective penalty. Without a compliance agreement, a packer would need to call an inspector every time he or she wanted to move fruit, which could delay the movement of fruit from the packing plant. Given that APHIS and the State of Florida routinely visit packing plants to assess compliance, and given that the regulations and the PPA provide us with several options for responding to incidents of noncompliance, we believe no changes to the interim rule are necessary.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

This rule is issued under Marketing Agreement and Order No. 955, both as amended (7 CFR part 955), regulating the handling of Vidalia onions grown in Georgia, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the reporting and assessment requirements prescribed under the order. This rule changes the provisions requiring monthly shipment reporting to weekly reporting. It also changes when assessments are due and how delinquent assessments are handled. This rule will provide the industry with more accurate and timely shipment and supply information and facilitate assessment collection. The Committee unanimously recommended these changes at a meeting held on December 6, 2001.

Section 955.60 of the order provides authority for the Committee to require handlers to file reports and provide other information as may be necessary for the Committee to perform its duties. Section 955.101 of the regulations provides the requisite reporting requirements. Prior to this action, handlers were required to file monthly reports including the name and address of the handler, the period covered in the report, the total Vidalia onions received by the handler, and the handler's total fresh market shipments.

Section 955.42 provides the authority for the formulation of an annual budget of expenses and the collection of assessments from handlers to administer the order. Section 955.42(f) provides the authority to impose a late payment charge or an interest charge or both, on any handler who fails to pay assessments in a timely manner and the authority to establish the time and rate of such charges. Section 955.142 of the rules and regulations outlines the procedures for applying interest charges to delinquent assessments.

This rule revises § 955.101 so that it requires handlers to file shipping reports on a weekly basis rather than monthly and increases the information collected. This rule also revises § 955.142, specifying when assessments are due and adjusting the way interest is applied to delinquent assessments.

Prior to this rule, § 955.101 required handlers to provide the Committee with information regarding the volume of Vidalia onions they received and shipped during each month of the shipping season. The shipping reports were to be filed no later than seven days after the end of each shipping month. The Committee provided a form to assist handlers with supplying the required shipping information. The main fresh shipping season for Vidalia onions generally runs from April through June. However, over the past 10 years, the industry has developed and refined Controlled Atmosphere (CA) storage, allowing Vidalia onions to be shipped throughout the year.

When the reporting requirement was originally implemented following the promulgation of the order in 1990, the Committee believed the best method for obtaining shipment data was by requiring handlers to report their volume of fresh market shipments at the end of each week. However, after the order had been in operation for a few seasons, the Committee found that many handlers considered weekly reporting too cumbersome. In the early 1990's, many Vidalia onion growers and handlers were small family operations. These operations did not pack large quantities or only packed for a limited time. Assessments owed were relatively small, and the industry found weekly reporting unnecessary and burdensome. Consequently, the Committee recommended a change to monthly reporting in 1993 (January 13, 1994, 59 FR 1896).

In the early years of the order, if a handler missed a report and owed assessments for a short period of time, it did not create a significant problem. The entities were small and the volumes shipped and the assessment amounts owed were often minimal. However, the Vidalia onion industry has grown from approximately 3,700 acres in 1989, to approximately 15,000 acres in 2001, producing a much larger volume of Vidalia onions. With advances in farming technology and changes in farm size, many smaller entities became part of larger enterprises or sell their onions to large handling operations rather than handle the onions themselves. These large operations can pack a considerable volume of Vidalia onions in a short amount of time. Under monthly reporting, the volumes shipped and assessments owed by a single handler can now be significant.

The Committee uses the information in the shipment reports to improve decision-making and program administration with regards to marketing research, market development, and promotional activities. The more accurate the information obtained from handlers, the more precise the Committee can be in adjusting its marketing research and promotion efforts. The shipment information is also provided to the industry on a composite basis to aid growers and handlers in planning their individual operations and in making marketing decisions during the season.

The reports are also used by the Committee to calculate the assessments owed by each handler. These reports are the Committee's best source for industry shipping data. Because these reports are so closely tied to industry information and assessment collection, it is imperative that the reports be both timely and accurate. Timely reports translate into information that is more exact and current and helps expedite the collection of assessments. However, the Committee has been experiencing problems receiving timely reports from some handlers. With handling operations increasing in size, delays in receiving reports are magnifying the industry's information and assessment collection problems because of the volume shipped and assessments owed.

With handlers failing to file reports in a timely manner, the composite reports the Committee issues on this shipping data are compromised. Delayed reporting has made available industry information inaccurate. In some years, the Committee has not had accurate monthly pack-out figures until the end of the season. Consequently, Committee reports based on this data has limited value to the industry. In addition, in this time of rapidly changing markets, monthly reports offer handlers little insight into current market conditions. Because of these things, there is no reliable information regarding the amount of Vidalia onions in the current channels of commerce. Without good information regarding the supply of Vidalia onions available in the market, the pipelines become full, driving down prices.

Delayed reporting has also effected assessment collection. The Committee needs accurate and timely reporting to calculate and collect assessments due. Late reporting can lead to late assessment payments and corresponding interest charges on these late payments. If the handler has a small operation, this problem has little impact on the overall Committee budget. However, with the size of handler operations increasing, a larger handler can affect the Committee's cash flow and budget by falling behind in its reporting and with the corresponding assessment payments. This could force the Committee to delay, reduce, or eliminate projects due to lack of financial resources. The Committee does have the authority to go to lending institutions for operating capital, but would prefer not to incur debt or the accompanying interest expense. Thus, it is important that reports and assessments be forwarded in a timely manner.

To address these problems, the Committee voted unanimously to change the reporting requirement from monthly reporting to weekly reporting. Under this change, the shipping week is defined as Monday through Sunday. Reports for each shipping week are due no later than 4:00 p.m. on Tuesday of the following week. Handlers are required to file reports for each season, with each new season beginning January 1. Handlers begin reporting the first week of the season in which they have shipments. In weeks when no shipments are made the handler is still required to file a report indicating that they had zero shipments. This continues until the handler files a final report for the season. The reporting form provided by the Committee has a space for the handler to indicate when they are filing their final report.

The Committee believes this change will reduce the problems with late reporting and delinquent assessments. This change gives Committee staff an earlier indication of potential problems. By identifying these potential problems sooner, the Committee staff can address them in a shorter period than under the monthly reporting requirement and before the volumes and assessments due grow to significant amounts.

Weekly reporting compresses the reporting window and helps accelerate the compliance process. Identifying handlers that are not reporting can now be measured in weeks rather than months. With weekly reporting, the Committee's compliance officer will have a better indication of which operating handlers are filing timely reports and concentrate compliance efforts on non-reporting handlers. A quicker response to potential compliance problems should help reduce reporting delays. Therefore, this change will improve industry reporting and help the Committee staff more accurately track industry shipments.

The Committee believes weekly reporting will also improve the accuracy and benefits of their composite reports. Handlers will receive more accurate information regarding industry shipments and in a timelier manner. With a shipping week of Monday through Sunday, handlers will be required to file reports no later than 4 p.m. on Tuesday following the week shipments were made. The Committee will assemble composite reports by Wednesday and distribute them to handlers. Consequently, handlers will have information on shipments and the supply of onions on the market on a timelier basis.

Having weekly shipping data provides a clearer picture of market conditions and affords better information regarding the balance of supply and demand. This is expected to help handlers better address market swings, reduce market gluts, and increase grower returns.

Because reporting and assessments are tied closely, the Committee believes this change will also help expedite the collection of assessments. Reducing the volume of delayed reporting will provide the Committee with better, timelier information on which to determine assessments due. As with the filing of reports, the Committee staff will have an earlier indication under weekly reporting of those handlers that are not paying their assessments in a timely manner. Again, the earlier a problem can be identified, the quicker it can be addressed and compliance and collection efforts can be started.

Timely reports are important for both accurate reports and assessment collection. Therefore, the Committee recommended that the shipment reporting requirement in § 955.101 be changed from monthly reporting to weekly reporting. This increases the handler reporting from 27 hours to 136 hours. The 109 hour increase results from the increase in handler reporting frequency from the current 3 responses to 15 responses per handler at 5 minutes per response. The total burden of 136 hours is calculated by multiplying the number of handlers (109) by the number of minutes per response (5 minutes) by the number of responses per handler (15 responses).

In addition, this rule revises § 955.101 to add information currently being reported by handlers but not specified in the provisions. Under the revised provisions, handlers will report their name and address, the period covered by the report, the total onions received by the handler, the total fresh market onions shipped, as well as the amount of shipments from their own acreage, their total assessments due, the amount of onions sold, the volume of onions packed under contract for another handler and the handler name(s), onions sold to another handler, and information on onions placed in Controlled Atmosphere storage. These provision changes do not affect the handler reporting burden.

This rule also revises the rules and regulations regarding the handling of delinquent assessments. Section 955.142 had stated that each handler must pay interest charges of 1 percent per month on any unpaid assessments levied, and on any accrued unpaid interest beginning thirty days after the date of billing, until the delinquent handler's assessment plus applicable interest had been paid in full. This rule changes this section by specifying when assessments are due from handlers and by adjusting the way interest is applied to delinquent assessments.

Under the current requirements, a handler reported shipments at the end of each month. The handler could then request to be billed for the assessments due on those shipments reported. The handler could further delay payment by holding the bill until the Committee sent a follow-up letter. This has created budgeting problems and angered those handlers paying on time.

To make the collection of assessments easier, timelier, and more cost-effective, the Committee voted to revise § 955.142 by making assessments due at the time when the handler's shipping volume is required to be reported. With the change to weekly reporting, assessments will be paid on a weekly basis for each week of shipments. Assessments are now due no later than 4:00 p.m. on Tuesday for those shipments made the previous week (Monday through Sunday). The option to request billing for assessments will no longer be available.

This change makes it easier to collect assessments. It is no longer necessary to keep track of who has paid, and who needs to be billed. Each handler's assessments are collected the same way and are due at the same time. With this change, the Committee also receives its money in a timelier manner. Rather than having to submit a bill and wait for payment, payment is due immediately on the date when the weekly shipments are required to be reported. This change also saves the Committee money by reducing mailing costs associated with having to bill handlers for assessments.

This change also improves the Committee's cash flow. Rather than lump sum payments at the end of the season or large monthly collections, assessment income will be received each week of the shipping season.

Therefore, the Committee voted that § 955.142 be changed so assessments are due not later than 4 p.m. on the Tuesday immediately following the week in which the shipments were made, at the same time weekly reports are due.

Finally, this rule further revises § 955.142 by adjusting the way interest charges are applied to delinquent assessments. Previously, § 955.142 specified that handlers must pay interest of 1 percent per month on any unpaid assessments and on any accrued unpaid interest beginning thirty days after the date of billing. The Committee recommended changing this language so that interest accrues at 1 percent per week on any unpaid assessments and any accrued unpaid interest beginning with the day the assessments were due until the delinquent handler's assessment plus applicable interest has been paid in full. Consequently, interest will begin accruing on delinquent assessments on the Wednesday immediately following the Tuesday when the assessments were due.

The Committee also voted to increase the interest charged to encourage handlers to pay on time. In the past, some handlers have waited until the end of the season to pay their assessments, in a way, forcing the Committee to basically loan them the assessment money.

This change provides more incentive for handlers to pay in a timely manner. The additional interest charge also will help compensate the Committee for the extra effort and expenditures required to collect the late assessments. This change is expected to improve assessment collection, provide more timely payments, reduce compliance costs, and reduce the need for the Committee to borrow operating funds.

The Committee has been looking for ways to improve the timeliness of reports and the payment of assessments. The Committee believes these changes help address these issues.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 133 producers of Vidalia onions in the production area and approximately 109 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms, which include handlers, are defined as those whose annual receipts are less than $5,000,000.

Based on the Georgia Agricultural Statistical Service and Committee data, the average annual grower price for fresh Vidalia onions during the 2001 season was $13.75 per 50-pound bag. Total Vidalia onions shipments for the 2001 season were around 3,592,200 50-pound bags. Using available data, about 97 percent of Vidalia onion handlers could be considered small businesses under the SBA definition. In addition, based on acreage, production, grower prices as reported by the National Agricultural Statistics Service, and the total number of Vidalia onion growers, the average annual grower revenue is below $750,000. In view of the foregoing, it can be concluded that the majority of handlers and producers of Vidalia onions may be classified as small entities.

The Committee has not been receiving timely reports from some handlers. With handling operations increasing in size, this has had a negative impact on both industry information and assessment collection because the quantities shipped and assessments owed by some delinquent handlers is significant. This rule revises § 955.101 to require handlers to file shipping reports on a weekly basis rather than monthly and increases the information requested. This rule also revises § 955.142, specifying when assessments are due and adjusting the way interest is applied to delinquent assessments. By identifying problems sooner, they can be addressed in a shorter period than under monthly reporting and before the volumes and assessments due grow to significant amounts. This rule also encourages handlers to report and pay their required assessments in a timely manner to avoid increased interest charges and other compliance activities. These changes will help reduce the problems with late reporting and assessment collection and provide more accurate information on shipments and supply. Authority for these actions is provided in §§ 955.42 and 955.60 of the order. The Committee unanimously recommended these changes at a December 6, 2001, meeting.

Requiring handlers to file shipping reports on a weekly basis imposes an additional reporting burden on both small and large handlers. Total reporting requirements per handler for monthly reporting totaled 15 minutes per handler (5 minutes per response times three responses per handler annually). This resulted in a total annual burden of about 27 hours (5 minutes per response times 3 responses times 109 handlers). Requiring handlers to report weekly, increases the annual burden by 1.25 hours per handler, for a total burden of 136 hours (5 minutes per response times 15 responses per handler times 109 handlers). Thus, the total annual burden for handlers is increased by 109 hours (136 total burden hours minus 27 total burden hours). Although this action places an additional burden on handlers of Vidalia onions, the benefits of having the additional and timely information regarding onion shipments is expected to outweigh the increase in reporting burden.

With weekly reporting, the Committee will have more accurate and timely information regarding industry shipments. Having this information and the resulting reports will help both the Committee and the industry make better decisions. Because the additional reporting will be required from all handlers regardless of size, the increased burden will be equitably distributed to all handlers.

This rule offers the potential for cost savings. Under this change, the Committee and the industry will have access to more current information. The Committee will be able to use this data when considering marketing research and promotion funding and activities. The industry can use the information to improve marketing decisions. Having access to information that is more current should help the industry balance supply with demand, thus reducing periods of oversupply and price variations. Even the slightest increase in price would more than compensate for any costs related to these changes.

These changes also are expected to reduce assessment collection costs for the Committee. By removing the option to be billed for assessments, the Committee is saving both employee time and postage. This rule may also lower compliance costs for the Committee. By reducing the number of handlers that are reporting late, the Committee will cut costs associated with identifying these handlers. This should decrease the overall number of compliance cases.

In addition, increasing the interest applied to late assessments will help curtail the volume of delinquent assessments. Such a reduction also will ease staff and mailing costs directed toward collecting past due assessments.

This rule will have a positive impact on affected entities. The changes were recommended to improve available industry information, facilitate assessment collection, and to reduce costs. The availability of more timely and accurate industry information will benefit both large and small handling operations. The changes this rule makes in terms of assessment collection mean that all handlers will be assessed the same way, with their assessments due at the same time. The reduction in Committee costs is also expected to benefit all handlers regardless of their size. Consequently, the opportunities in benefits of this rule are expected to be equally available to all.

An alternative to the actions recommended by the Committee was considered prior to making the final recommendations. The alternative considered was implementing a mandatory inspection program under the marketing order. However, the Committee recognized this alternative would require amending the order and take further time to implement. While not ruling out this alternative in terms of future action, the Committee believed the recommended actions give them a more timely solution while they consider other alternatives.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Committee's meeting was widely publicized throughout the Vidalia onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 6, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of these actions on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This action requires an additional collection of information. These information collection requirements are discussed in the following section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), this notice announces that AMS has received emergency approval for a new information collection request for Vidalia Onions Grown in Georgia, Marketing Order No. 955. The emergency request was necessary because insufficient time was available to follow normal clearance procedures. This collection will be merged with the forms currently approved for use under OMB No. 0581-0178 “Vegetable and Specialty Crops”, and will replace the existing FV-181 “Vidalia Onion Handler Report Form”.

Title: Vidalia Onions Grown in Georgia, Marketing Order No. 955.

OMB Number: 0581-NEW.

Type of Request: New collection.

Abstract: The information collection requirements in this request are essential to carry out the intent of the Act, to provide the respondents the type of service they request, and to administer the Vidalia onion marketing order program, which has been operating since 1990.

On December 6, 2001, the Committee unanimously recommended revising the order's administrative rules and regulations to require handlers to report to the Committee information on Vidalia onion shipments on a weekly rather than monthly basis. This information will be reported on a Form FV-181, Vidalia Onion Handler Report Form. This report is used by handlers to inform the Committee of their weekly receipts and shipments of onions during the season, assessments due, and other information. The estimated increase in burden due to the increased reporting frequency is one hour per handler, with a total increased burden estimated at 109 hours.

The weekly reports are needed so the Committee can collect information on Vidalia onion shipments on a weekly basis during the season. The Committee will evaluate this information and determine whether a handler is in compliance with order regulations. These reports will ensure compliance with the regulations and assist the Committee and the USDA with oversight and planning.

The information collected is used only by authorized representatives of USDA, including AMS, Fruit and Vegetable Programs regional and headquarters staff, and authorized Committee employees. Authorized Committee employees will be the primary users of the information and AMS is the secondary user.

The request for approval of the revised information collection under the order is as follows:

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 5 minutes per response.

Respondents: Handlers who acquire and/or ship Vidalia onions during the season.

Estimated Number of Respondents: 109.

Estimated Number of Responses per Respondent: 15.

Estimated Total Annual Burden on Respondents: 136 hours.

Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments should reference OMB No. 0581-NEW and the Vidalia onion marketing order, and be sent to USDA in care of the Docket Clerk at the previously mentioned address. All comments received will be available for public inspection during regular business hours at the same address.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. As mentioned before, because there was insufficient time for a normal clearance procedure and prompt implementation is needed, AMS has obtained emergency approval from OMB for the use of the revised form for the season. This collection will be merged with the forms currently approved for use under OMB No. 0581-0178 “Vegetable and Specialty Crops”, and will replace the existing FV-181, Vidalia Onion Handler Report Form. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In addition to the change in the information collection burden, this rule revises the provisions requiring handlers to file shipment reports from monthly reporting to weekly reporting. It also changes when assessments are due and how delinquent assessments are handled. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register . This rule should be in place as early as possible in the current season which began April 1. Also, these issues have been widely discussed at industry meetings, and the Committee has kept the industry well informed. Further, handlers are aware of this rule, which was recommended at public meetings. Also, this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

Marketing Order No. 981, as amended (7 CFR Part 981), regulates the handling of almonds grown in California. The marketing order is authorized under the Agricultural Marketing Agreement Act of 1937 (Act), as amended (7 U.S.C. 601-674).

Marketing Order 981, originally established in 1950, authorizes research and promotion activities, quality control, volume control, mandatory inspection, and reporting requirements. The marketing order establishes the Almond Board of California (Board), consisting of five producers and five handlers and their respective alternates. Currently, four of the members represent cooperative marketing associations and six represent independents (those not affiliated with a cooperative). Eight of the members and alternates serve staggered, three-year terms of office. Two members (one grower and one handler) serve one-year terms. These two positions are represented by the group (cooperative or independent) that accounted for over fifty percent of the production in the preceding year. Independent producer members are nominated by independent producers, and independent handlers members are nominated by independent handlers through a mail balloting process. Cooperative representatives are nominated by the cooperative marketing organizations. The California almond industry currently consists of approximately 7,000 producers and 110 handlers.

AMS published in the Federal Register (63 FR 8014; February 18, 1999), its plan to review certain regulations, including Marketing Order No. 981, under criteria contained in section 610 of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612). An updated plan was published in the Federal Register on January 4, 2002 (67 FR 525). AMS published a notice of review and request for written comments on the California almond marketing order in the June 13, 2001, issue of the Federal Register (66 FR 31850). During the comment period, two written comments in support of the marketing order were received. The comments were received from the Board and an almond handler.

The AMS review was undertaken to determine whether the California almond marketing order should be continued without change, amended, or rescinded to minimize the impacts on small entities. In conducting this review, AMS considered the following factors: (1) The continued need for the marketing order; (2) the nature of complaints or comments received from the public concerning the marketing order; (3) the complexity of the marketing order; (4) the extent to which the marketing order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the marketing order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing order.

In its written comment, the Board addresses the various activities and programs administered under the order, describes benefits of the activities, and expresses support for the programs. It also summarizes the evolution of the order from its inception in 1950 to the present day.

The handler comment also expresses support for the order. It notes that the order provides a valuable product to consumers, increases the consumption of almonds, and facilitates the orderly marketing of almonds in the marketplace. The comment also notes that the order accomplishes these things without duplicating the efforts of individual handlers or engaging in activities that affect the competitive advantage of handlers in the marketplace.

The marketing order was established to help the California almond industry work with AMS to solve marketing problems that were characterized by abundant supplies and relatively low producer returns. These problems continue today and the industry needs the marketing tools available under the marketing order in overcoming these problems. The industry has undergone dramatic growth in production since the marketing order's inception. Production has increased almost 1,000 percent since the order's inception and nearly 500 percent since 1972. The marketing order has been used effectively in expanding markets and in finding new uses for almonds to absorb the increasing production.

Based on its review, AMS has determined that the marketing order should be continued without change.

Neither AMS nor the Board has received any complaints regarding Marketing Order 981 or the rules and regulations issued thereunder. In 1998, USDA conducted a continuance referendum and the marketing order was supported by nearly 90 percent of the producers who voted in the referendum. The marketing order is not unduly complex, and AMS has not identified any relevant Federal rules, or State and local regulations that duplicate, overlap, or conflict with the California almond marketing order.

AMS provides Federal oversight of the order and, along with the Board, monitors marketing operations on a continuing basis. AMS works with the Board to ensure that the regulations issued and production and market activities undertaken address current market and industry conditions, and that the regulations and administrative procedures implemented are appropriate for current practices within the industry. The producers and handlers of California almonds support the activities that help ensure the marketing of a high quality product in expanding markets, and believe that this order has been effectively used for these purposes.

AMS will continue to work with the California almond industry in maintaining an effective marketing order program.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-16-04, amendment 39-11239 (64 FR 41775, August 2, 1999), which is applicable to certain Bombardier Model CL-215-1A10 and CL-215-6B11 series airplanes, was published in the Federal Register on February 8, 2002 (67 FR 5958). The action proposed to continue to require repetitive inspections to detect cracking on certain wing-to-fuselage frame angles, and repair, if necessary. The action also proposed to decrease the compliance time for the initial inspection to detect cracking on certain wing-to-fuselage frame angles and to decrease the interval between repetitive inspections.

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

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

There is one airplane of U.S. registry that will be affected by this AD.

The inspections that are currently required by AD 99-16-04 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $120 per airplane, per inspection cycle.

The new inspections that are required by this new AD will take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $180 per airplane, per inspection cycle.

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

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

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

The FAA is redesigning the nation's airspace to reduce the volume of air traffic operations in certain congested areas commonly referred to as “choke-points.” As part of this effort, the FAA believes that revising the affected segment of J-180 to reroute it over the new Sawmill, LA, VORTAC will alleviate air traffic congestion in specific “choke-point” areas.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on this proposal to the FAA (66 FR 56250). No comments were received in response to the proposal.

This amendment to 14 CFR part 71 realigns J-180 between the Daisetta, TX, VORTAC and the Little Rock, AR, VORTAC by moving the route eastward over the new Sawmill, LA, VORTAC. This action is necessary to support the national airspace redesign project and reduces air traffic congestion in identified “choke-point” areas.

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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Jet routes are published in paragraph 2004 of FAA Order 7400.9J dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The jet route listed in this document will be published subsequently in the Order.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

On February 2, 2002, the United States Air Force (USAF) requested that the FAA take action to change the using agency of R-4305 from “USAF, Detachment 1, HQ Air Combat Command (DOSR), Offutt AFB, NE” to “USAF, 55th Wing, Offutt AFB, NE.” This change is needed because the DOSR is no longer in existence and the 55th Wing, Offutt AFB has assumed the responsibility of the using agency for R-4305.

This amendment to 14 CFR part 73 changes the using agency of R-4305 from “USAF, Detachment 1, HQ Air Combat Command (DOSR), Offutt AFB, NE” to “USAF, 55th Wing, Offutt AFB, NE.” No other changes to R-4305 are made by this action.

Since this action simply changes the using agency for the restricted area and does not involve a change in the dimensions or operations requirements of that airspace, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Section 73.43 of part 73 was republished in FAA Order 7400.8J, dated September 20, 2001.

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. Since it has been determined that this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In the Federal Register of May 21, 1999 (64 FR 27666), FDA issued a final monograph for OTC sunscreen drug products (21 CFR part 352). Section 352.10 of that monograph included the active ingredients menthyl anthranilate, octyl methoxycinnamate, octyl salicylate, and phenylbenzimidazole sulfonic acid.

In 2000 (Ref. 1), the U.S.P. proposed (for inclusion in the Third Supplement to U.S.P. 24) name changes for these four ingredients based on names adopted by the United States Adopted Names (USAN) Council. The new names are: Meradimate for menthyl anthranilate, octinoxate for octyl methoxycinnamate, octisalate for octyl salicylate, and ensulizole for phenylbenzimidazole sulfonic acid. These name changes became official on March 1, 2001, and were subsequently included in the U.S.P. with an effective date of September 1, 2002 (Ref. 2).

The Federal Food, Drug, and Cosmetic Act (the act) requires the label of a drug to bear the established name of the drug to the exclusion of any other nonproprietary name (except the applicable systematic chemical name or the chemical formula) (21 U.S.C. 352(e)(1)(A)(i)). The established name of the drug is defined as

Section 508 of the act (21 U.S.C. 358) authorizes FDA to designate an official name for any drug if FDA determines “that such action is necessary or desirable in the interest of usefulness and simplicity” (21 U.S.C. 358(a)). FDA does not, however, routinely designate official names for drug products under section 508 of the act (§ 299.4(e) (21 CFR 299.4(e))). In the absence of designation by FDA of an official name, interested persons may rely on the current compendial name as the established name (§ 299.4(e)).

FDA has not designated official names for the following active ingredients: Menthyl anthranilate, octyl methoxycinnamate, octyl salicylate, and phenylbenzimidazole sulfonic acid. Thus, their established names are the current compendial names. The U.S.P. has now changed the compendial names to: Meradimate for menthyl anthranilate, octinoxate for octyl methoxycinnamate, octisalate for octyl salicylate, and ensulizole for phenylbenzimidazole sulfonic acid. To be consistent with the change in official compendial names, the agency is changing these names in § 352.10 in the ingredient listing and in § 352.20 in the permitted combinations listing. Because the active ingredients are listed in alphabetical order in § 352.10, the ingredients listed in paragraphs (f) through (n) are rearranged because of these name changes. These name changes will become effective on September 1, 2002, to coincide with the U.S.P. effective date.

Because section 502(e)(1) and (e)(3) of the act (21 U.S.C. 352(e)(1) and (e)(3)) require the established name of a drug to be used, any sunscreen drug product initially introduced or initially delivered for introduction into interstate commerce after September 1, 2002, will need to bear the new established names “meradimate,” “octinoxate,” “octisalate,” and “ensulizole.”

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of agency procedure under 5 U.S.C. 553(b)(3)(A). Alternatively, the agency's implementation of this action without opportunity for public comment comes within the good cause exceptions in 5 U.S.C. 553(b)(3)(B) in that obtaining public comment is impracticable, unnecessary, and contrary to public interest. This labeling revision represents a minor clarifying change that does not change the substance of the labeling requirements contained in the final regulations. As discussed above, manufacturers must relabel their products as a result of the U.S.P. name change to remain in compliance with the act. This amendment updates the names of four active ingredients in the final monograph for OTC sunscreen drug products to reflect this official name change that has already been implemented by the U.S.P. In accordance with 21 CFR 10.40(e)(1), FDA is providing an opportunity for comment on whether the regulation should be modified or revoked.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Under the Regulatory Flexibility Act, if a rule has a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement of anticipated costs and benefits before proposing any rule that may result in an expenditure in any one year by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation).

The agency concludes that this final rule is consistent with the principles set out in Executive Order 12866 and in these two statutes. FDA has determined that the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.

The Unfunded Mandates Reform Act of 1995 does not require FDA to prepare a statement of costs and benefits for this final rule, because the final rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation. The current inflation adjusted statutory threshold is about $110 million.

The purpose of this final rule is to update the final monograph for OTC sunscreen drug products to incorporate U.S.P. name changes for four active ingredients included in the monograph. As discussed in section II of this document, section 502(e)(1) and (e)(3) of the act require that the established name of a drug be used. Under § 299.4(e), because FDA does not routinely designate official names under section 508 of the act, the established name under section 502(e) of the act ordinarily is the compendial name of the drug. Therefore, because FDA has not designated an official name under section 508 of the act, manufacturers must relabel their products as a result of the U.S.P. name change to remain in compliance with the act. Updating the names of the active ingredients in the sunscreen monograph to reflect their current established names will eliminate possible confusion by the public. The U.S.P. allows manufacturers 18 months to comply with the name changes, and the agency's effective date coincides with that of the U.S.P.

Because manufacturers must relabel their products as a result of the U.S.P. name change to remain in compliance with the act, this rule does not impose any additional costs on industry. Consequently, the agency certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Therefore, no further analysis is required.

The agency concludes that the labeling requirements in this document are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq .). Rather, the labeling statements are a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)).

The agency has determined under 21 CFR 25.31(a) 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.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required

Interested persons may submit to the Dockets Management Branch (see ADDRESSES ) written or electronic comments by August 19, 2002. Two copies of all written comments are to be submitted. Individuals submitting written comments or anyone submitting electronic comments may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document and may be accompanied by a supporting memorandum or brief. Received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Dockets Management Branch (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

DEC International, Inc., 1919 South Stoughton Rd., P.O. Box 8050, Madison WI 53708-8050, filed NADA 141-200 that provides for use of EAZI-BREED CIDR Progesterone Intravaginal Inserts for synchronization of estrus in suckled beef cows and replacement beef and dairy heifers, for advancement of first postpartum estrus in suckled beef cows, and for advancement of first pubertal estrus in replacement beef heifers. The NADA is approved as of May 2, 2002, and the regulations in 21 CFR part 529 are amended by adding § 529.1940 to reflect the approval. The regulation in 21 CFR 522.690 is being amended to add a cross-reference for the concurrent use of dinoprost solution by intramuscular injection and is being revised to reflect a current format. The basis of approval is discussed in the freedom of information summary.

In addition, DEC International, Inc., has not been previously listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c) is being amended to add entries for the firm.

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

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning May 2, 2002.

The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (see ADDRESSES ) between 9 a.m. and 4 p.m., Monday through Friday.

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 AMLR Program was established by Title IV of the Act (30 U.S.C. 1201 et seq. ) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee which is collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a “plan”) for the reclamation of abandoned coal mines.

On November 24, 1980, the Secretary of the Interior approved the Montana plan. You can find general background information on the Montana plan, including the Secretary's findings and the disposition of comments, in the October 24, 1980, Federal Register (45 FR 70445). You can also find later actions concerning Montana's plan and plan amendments at 30 CFR 926.21 and 926.25.

By letter dated August 15, 2000, Montana sent us a proposed amendment to its plan (SPATS No. MT-021-FOR, Administrative Record No. MT-18-01) under SMCRA (30 U.S.C. 1201 et seq. ). Montana sent the amendment in response to a required plan amendment at 30 CFR 926.21(a) and at its own initiative.

Montana proposed to delete its abandoned mine land (AML) rule definitions of “abandoned mine land reclamation fund,” “emergency,” and “extreme danger” at the Administrative Rules of Montana (ARM) 26.4.301 and its definitions of “abandoned mine land reclamation fund,” “emergency,” “expended,” “extreme danger,” “fund,” “left or abandoned in either an unreclaimed or inadequately reclaimed condition,” “Montana abandoned mine reclamation program,” and “reclamation activities” at ARM 26.4.1231. Montana proposed a revised definition of “abandoned” at ARM 26.4.301 and a revised ARM 26.4.1303. Montana also proposed to delete the AML rules at ARM 26.4.1232 through 26.4.1242 and to rely instead on its AMLR plan and on the statutory provisions at the Montana Code Annotated (MCA) 82-4-239, 242, 323, 371, 372, 424, 445 and 446. Montana proposed revisions to MCA 82-4-239 to reflect the reorganized duties of the Board of Environmental Review and the DEQ. Montana presented its 1995 reorganization plan abolishing the Department of State Lands and creating the DEQ.

We announced receipt of the proposed amendment in the September 25, 2000, Federal Register (65 FR 57581; Administrative Record No. MT-18-06). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on October 25, 2000. We received comments from three Federal agencies.

During our review of the amendment, we identified concerns relating to the deletion of Montana's rules concerning non-emergency AML reclamation, the deletion of Montana's rules concerning emergency reclamation, the statutes relating to Montana's AMLR plan, cross-references and quotes in the Montana plan which cited the deleted rules, and the reference to the former Department of State Lands, now the DEQ. We notified Montana of these concerns by letter dated January 24, 2001 (Administrative Record No. MT-18-08).

Montana responded in a letter dated April 30, 2001, by submitting additional explanatory information and a revised 2001 plan amendment (Administrative Record No. MT-18-11). Montana responded to each of our January 24, 2001, concerns, in particular, explaining where Montana believes it retains authority to implement its approved AMLR program (both emergency and non-emergency reclamation activities) for each deleted rule, where Montana intends to rely upon Federal authority, that the 2001 plan amendment supercedes earlier plans which may conflict with subsequent revisions, and referencing additional statutes which provide AML authority. Montana revised the AMLR plan to provide 2001 updated information, delete obsolete rule cites, change the State agency name to the Department of Environmental Quality, provide missing pages, provide an organizational chart for the DEQ, and make other editorial changes. By letter dated June 5, 2001 (Administrative Record No. MT-18-13), Montana provided a complete Attachment C to its revised plan.

Based on Montana's explanatory information and revised 2001 plan amendment, we reopened the public comment period in the June 1, 2001, Federal Register (66 FR 29744, Administrative Record No. MT-18-12) and provided an opportunity for a public hearing or meeting on the adequacy of the revised amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period closed on July 2, 2001. We received comments from two Federal agencies.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are approving the amendment.

In 1995, the Montana legislature renamed the former Board of Land Commissioners to become the Board of Environmental Review and created the DEQ, formerly the Department of State Lands. This reorganization was performed in order to streamline the natural resource functions of State government. Montana submitted the statute changes resulting from the State reorganization in SPATS No. MT-017-FOR (Administrative Record No. MT-14-01).

When we reviewed the MT-017-FOR submittal, we did not find any regulatory (Title V) problems with the Montana submittal concerning the State reorganization. However, we deferred on the approval of MCA 82-4-239 concerning AML (Title IV) reclamation and placed a required plan amendment upon the Montana program (30 CFR 926.21(a)) in order to obtain more information concerning the revised AMLR plan and the AMLR reorganization. For more information, please refer to the final rule Federal Register notice dated January 22, 1999, on MT-017-FOR (64 FR 3604; Administrative Record No. MT-14-13).

In the August 15, 2000, submittal (SPATS No. MT-021-FOR; Administrative Record No. MT-18-01), Montana presented a copy of the 2000 State handbook concerning the creation of the Montana DEQ. This handbook contains the information we requested regarding a new organizational chart for the AMLR plan under the DEQ.

In addition, Montana has submitted a rewritten Reclamation Plan 2001 plan amendment. In this document, Montana has updated references from the former Department of State Lands to reflect management under the current DEQ. The following pages have been revised to reflect that name change: pages 1 and 2, Introduction; page 3, the Designation of the DEQ as Authorized Agency; page 5, Legal Opinion of Authority to Conduct AML Program; page 7, Goals and Objectives; page 8, Reclamation Projects Ranking and Selection; page 9, Coordination of Agencies; page 10, Policies and Procedures for Land Acquisition, Management and Disposal; page 11, Reclamation of Private Land; page 12, Consent for Entry; pages 13 through 15, Administrative and Management Structure; page 16, Personnel Staffing Policies; page 17, Purchasing and Procurement Policies; page 18, Accounting System; page 19, Parameters Related to Montana AML Reclamation Program; and Attachments C, D, E, and F concerning Abandoned Inactive Mine Scoring System (AIMSS), DEQ Personnel Staffing Policies, Purchasing and Procurement Delegation Agreement, and the Montana Administrative Register which published notices of the Montana AML plan revision in 1996, respectively.

In the response letter dated April 30, 2001 (Administrative Record No. MT-18-11), Montana stated that there are no further revisions to the State AMLR plan, other than what is included in this submittal. This explanation satisfies the required plan amendment at 30 CFR 926.21(a) as it provides us with adequate information concerning Montana's reorganization. We find Montana's AMLR plan amendment to be in compliance with SMCRA and consistent with the Federal regulations. We remove the required plan amendment at 30 CFR 926.21(a).

As part of the Montana Governor's directive to reduce ARM rules by at least 5%, Montana proposed to delete all State rules (listed above) concerning its AMLR program (see Attachment F, 2001 State Plan Amendment) in 1996. Montana decided to rely on its AMLR plan; the State statutes at MCA 82-4-239, 242, 323, 371, 372, 424, 445, and 446; and the Federal authority contained in the Code of Federal Regulations at 30 CFR subchapter R.

In response to these deletions, we sent Montana a letter dated January 24, 2001, requesting a description of where the deleted sections were covered elsewhere, either in the approved AMLR plan or the State statutes (Administrative Record No. MT-18-08). In response, Montana provided a rewritten AMLR plan, as well as a letter dated April 30, 2001, detailing where the information from the deleted rules is addressed elsewhere in the State AMLR plan (Administrative Record No. MT-18-11). The replacement authority for the deleted rules in the Montana AMLR plan is as follows:

Montana states that it will use the Federal definitions for “emergency” and “extreme danger” which are contained in 30 CFR 870.5. Montana has also attached its approved 1983 Emergency Program Plan Amendment to the 2001 State Plan Amendment as Attachment A. The 1983 Emergency Program Plan and the original 1980 plan address the provisions of ARM 26.4.1231 and 26.4.1232 concerning AMLR definitions and the AMLR fund. Montana states that most of the remaining rule deletions do not pertain to Montana's emergency AMLR program and are covered elsewhere in the plan. A copy of Montana's original 1980 AMLR plan, which is referenced in the following discussions, may be obtained from the DEQ.

The most current definition of eligible lands and waters is contained in the 1995 Montana plan amendment (SPATS No. MT-016-FOR; Administrative Record No. MT-AML-01). This definition was expanded to include certain coal mine sites where there had been a forfeiture of inadequate bonds or where bonds were forfeited from an insolvent surety.

The requirements for this deleted rule are contained in the original 1980 plan beginning on page 11, Volume 1. The AML goals and objectives are addressed on page 7 of the 2001 State Plan Amendment (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

Montana's criteria for AML project ranking and selection are contained on page 14, Volume 1 of the 1980 original AMLR plan. In addition, Montana has incorporated at Attachment C of the 2001 State Plan Amendment, the AIMSS, a procedure for ranking and evaluating projects (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

Montana's original 1980 plan lists the criteria for AML consent of entry on page 25, Volume 1. In addition, page 12 of the 2001 State Plan Amendment addresses consent for entry (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

Montana's original 1980 plan defines the policies and procedures for land acquisition, management, and disposal on pages 19 through 21, Volume 1, as does page 10 of the 2001 State Plan Amendment (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

Montana's original 1980 AMLR plan addresses the procedures for land acquisition on pages 19 through 21, Volume 1, as does the 2001 State Plan Amendment on page 10 (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

Montana's original 1980 AMLR plan defines the policies and procedures for land acquisition, management, and disposal on pages 19 through 21, Volume 1.

Montana's original 1980 AMLR plan defines the policies and procedures for land acquisition, management and disposal on pages 19 through 21, Volume 1.

Montana's original 1980 AMLR plan defines the policies and procedures for land acquisition, management, and disposal on pages 19 through 21, Volume 1.

The requirement to reclaim private land is addressed in the Montana Constitution at Article IX, in the original 1980 AMLR plan on page 24, and in the 2001 State Plan Amendment at page 11 (SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).

In addition to discussion a. through k. above, pages five through 19 of the 2001 Plan Amendment address the content of an AML plan. The Federal equivalent is contained at 30 CFR 884.13. Therefore, based on the above description, we find that the proposed Montana deletions and revisions, considered together with other statutes and plan amendments, compare, all together, with applicable requirements of the Federal regulations and SMCRA sufficient to ensure that the Montana plan, as a whole, meets all applicable Federal requirements.

Montana revised MCA 82-4-239 in SPATS No. MT-017-FOR to reflect the reorganized duties of the Board of Environmental Review and the DEQ. However, we deferred our decision on MCA 82-4-239 in SPATS No. MT-017-FOR as it was unclear what the new reorganization of the Montana AMLR plan consisted of, as well as which AMLR rules and statutes had been revised as a result of the 1995 State reorganization (January 22, 1999, Federal Register notice; 64 FR 3604).

In MT-021-FOR, Montana has presented the same revisions to MCA 82-4-239 as we reviewed in MT-017-FOR. However, in MT-021-FOR, Montana has also presented the information that we requested in the required plan amendment at 30 CFR 926.21(a). Specifically, Montana has presented an organizational chart for the new DEQ, a narrative description of changes made to the AMLR plan in a letter dated May 30, 2001, a rewritten AMLR plan (see finding B of this final rule), as well as assurances that no other revisions exist to the AMLR program. With this information, we can approve revised MCA 82-4-239 as in compliance with SMCRA and consistent with Federal regulations. We approve the revisions to MCA 82-4-239.

We asked for public comments on the amendment by letter dated September 13, 2000 (Administrative Record No. MT-18-03), but did not receive any.

Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Montana plan by letter dated September 13, 2000 (Administrative Record No. MT-18-03). The Bureau of Indian Affairs (BIA) responded by letters dated September 29, 2000, and May 30, 2001, that it had no concerns with the proposed Montana AMLR revisions (Administrative Record Nos. MT-18-05 and MT-18-14). The BIA's September 29, 2000, letter also gave positive comments concerning Montana's revegetation program, which is the subject of another State Program Amendment, SPATS No. MT-019-FOR. The Mine Safety and Health Administration (MSHA) sent in letters from three offices (Denver, CO; Arlington, VA; and Pittsburgh, PA) which stated that it had no concerns with the proposed Montana AMLR revisions. Those letters are dated October 18, 2000, November 13, 2000, and June 11, 2001 (Administrative Record Nos. MT-18-04, MT-18-07, and MT-18-15).

Based on the above findings, we approve Montana's August 15, 2000, amendment as revised by the submittal dated April 30, 2001.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 926, which codify decisions concerning the Montana plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 405(d) of SMCRA requires that the State have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State AMLR plans and revisions thereof because each plan is drafted and promulgated by a specific State, not by OSM. Decisions on proposed State AMLR plans and revisions thereof submitted by a State are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR part 884.

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

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

No environmental impact statement is required for this rule since agency decisions on proposed State AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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

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

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

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with 5 U.S.C. 553(b)(B) and 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the Federal Register . The event will begin on Saturday, June 22, 2002. There is not sufficient time to allow for an appropriate notice and comment period, prior to the event. Because of the dangers posed by low flying aircraft over a confined space, special local regulations are necessary to provide for the safety of event participants, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. In addition, advance notifications will be made via the Local Notice to Mariners, marine information broadcasts, and area newspapers.

On June 22 and June 23, 2002, Langley Air Force Base will conduct a low-flying, high-speed aerial demonstration above a portion of the Back River, including the Southern and Northwest Branches. A fleet of spectator vessels is expected to gather near the event site to view the aerial demonstration. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the aerial demonstration.

The Coast Guard is establishing temporary special local regulations on specified waters of the Back River, including the Southern and Northwest Branches. The temporary special local regulations will be enforced daily from 7 a.m. to 10 p.m. (local time) on June 22 and June 23, 2002. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

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).

Although this rule prevents traffic from transiting a portion of the Back River during the event, the effect of this rule will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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.

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the Back River during the event.

Although this rule prevents traffic from transiting a portion of the Back River during the event, the effect of this rule will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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

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

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

This rule will not affect 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 and direct effect on one or more Indian tribes, on the relationship between the Federal Governments 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 considered the environmental impact of this rule and concluded that, under figure 2-1, paragraphs (34)(h) and (35)(a) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit for an event not located in, proximate to, or above an area designated as environmentally sensitive by an environmental agency of the Federal, state, or local government, are specifically excluded from further analysis and documentation under those sections. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with 5 U.S.C. 553(b)(B) and 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the Federal Register . The event will be held on Saturday, June 22, 2002. There is not sufficient time to allow for an appropriate notice and comment period, prior to the event. Because of the large concentration of boats in a confined area, special local regulations are necessary to provide for the safety of spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. In addition, advance notifications will be made via the Local Notice to Mariners, marine information broadcasts, and area newspapers.

On Saturday, June 22, 2002, Ports Events, Inc. will sponsor the Cock Island Race on the waters of the Elizabeth River, between Norfolk and Portsmouth, Virginia. The event will consist of approximately 300 sailboats, ranging in length from 22 feet to 60 feet, sailing out of the Elizabeth River into Hampton Roads and returning. To provide for the safety of participants, spectators, and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the race.

The Coast Guard is establishing temporary special local regulations on specified waters of the Elizabeth River, between Norfolk and Portsmouth, Virginia. The temporary special local regulations will be in effect from 8:30 a.m. to 4 p.m. (local time) on June 22, 2002. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the start of the event to enhance the safety of spectators and transiting vessels.

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).

Although this rule prevents traffic from transiting a portion of the Elizabeth River during the event, the effect of this rule will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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.

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the affected portions of the Elizabeth River during the event.

Although this rule prevents traffic from transiting a portion of the Elizabeth River during the event, the effect of this rule will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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

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

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

This rule will not affect 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 and direct effect on one or more Indian tribes, on the relationship between the Federal Governments 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 prepared an “Environmental Assessment” in accordance with Commandant Instruction M16475.1C, and determined that this rule will not significantly affect the quality of the human environment. The “Environmental Assessment” and “Finding of No Significant Impact” is available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with 5 U.S.C. 553(b)(B) and 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the Federal Register . The event will be held on Wednesday, July 3, 2002. There is not sufficient time to allow for an appropriate notice and comment period, prior to the event. Because of the danger inherent in pyrotechnic displays, special local regulations are necessary to provide for the safety of spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. In addition, advance notifications will be made via the Local Notice to Mariners, marine information broadcasts, and area newspapers.

On July 3, 2002, the Salute to Cecil County Veterans Committee will sponsor a fireworks display over the Northeast River, adjacent to North East Community Park, North East, Maryland. The pyrotechnics will be launched from a barge anchored approximately 1000 yards south of North East Community Park. A fleet of spectator vessels is expected to gather near the event site to view the fireworks display. To provide for the safety of spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the fireworks display.

The Coast Guard is establishing temporary special local regulations on specified waters of the Northeast River adjacent to North East Community Park, North East, Maryland. The regulated area is a 300-yard radius around the fireworks barge. The temporary special local regulations will be in effect from 9 p.m. to 10 p.m. local time on July 3, 2002. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of spectators and transiting vessels.

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).

Although this rule prevents traffic from transiting a portion of the Northeast River during the event, the effect of this rule will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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.

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the Northeast River during the event.

Although this rule prevents traffic from transiting a portion of the Northeast River during the event, the effect of this rule will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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

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

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

This rule will not affect 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 and direct effect on one or more Indian tribes, on the relationship between the Federal Governments 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 considered the environmental impact of this rule and concluded that, under figure 2-1, paragraphs (34)(h) and (35)(a) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit for an event not located in, proximate to, or above an area designated as environmentally sensitive by an environmental agency of the Federal, state, or local government, are specifically excluded from further analysis and documentation under those sections. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

On May 2, 2002, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Nanticoke River, Sharptown, Maryland, in the Federal Register (67 FR 22023). We received no letters commenting on the proposed rule. No public hearing was requested and none was held.

The North-South Racing Association will sponsor the Sharptown Outboard Regatta on June 29 and 30, 2002. The event consists of approximately 50 hydroplanes and runabouts conducting high-speed competitive races on the waters of the Nanticoke River between the Maryland S.R. 313 Bridge at Sharptown, Maryland and the Nanticoke River Light 43 (LLN-24175). A fleet of spectator vessels normally gathers nearby to view the event. Due to the need for vessel control during the races, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

No comments were received. No changes have been made to the proposed regulatory text.

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).

Although this rule will prevent traffic from transiting a portion of the Nanticoke River during the event, the effect of this rule will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. The Patrol Commander will also allow non-participating vessels to transit the regulated area between races, whenever safe to do so.

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 owners or operators of vessels, some of which may be small entities, intending to transit or anchor in the effected portions of the Nanticoke River during the event.

Although this rule prevents traffic from transiting a portion of the Nanticoke River during the event, the effect of this proposed regulation will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. The Patrol Commander will also allow non-participating vessels to transit the regulated area between races, whenever it is safe to do so.

Under section 213 (a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. No assistance was requested by any small business, organization, or governmental jurisdiction.

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would 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 prepared an “Environmental Assessment” in accordance with Commandant Instruction M16475.1C, and determined that this rule will not significantly affect the quality of the human environment. The “Environmental Assessment” and “Finding of No Significant Impact” is available in the docket where indicated under ADDRESSES.

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. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and spectators gathering in the vicinity of the fireworks launching barge. Due to the complex planning and coordination, the event sponsor, the Fort Vancouver Fireworks Committee, was unable to provide the Coast Guard with notice of the final details until less than 30 days prior to the date of the event. If normal notice and comment procedures were followed, this rule would not become effective until after the date of the event. For this reason, following normal rulemaking procedures in this case would be impracticable and contrary to the public interest.

The Coast Guard is adopting a temporary safety zone regulation to allow a safe fireworks display. The fireworks display is scheduled to start at 10 p.m. (PDT) on July 4, 2002. This event may result in a number of vessels congregating near the fireworks launching barge. The safety zone is needed to protect watercraft and their occupants from safety hazards associated with fireworks display. This safety zone will be enforced by representatives of the Captain of the Port, Portland, Oregon. The Captain of the Port may be assisted by other federal and local agencies.

The Captain of the Port, Portland, Oregon, is taking this action to safeguard watercraft and their occupants from safety hazards associated with the fireworks display. The safety zone will encompass all waters of the Columbia River at Vancouver, Washington bounded by a line commencing at the northern base of the Interstate 5 highway bridge at latitude 45°37′16.5″ N, longitude 122°40′22.5″ W; thence south along the Interstate 5 highway bridge to Hayden Island, Oregon at latitude 45°36′51.5″ N, longitude 122°40′39″ W; thence east along Hayden Island to latitude 45°36′36″ N, longitude 122°39′48″ W (not to include Hayden Bay); thence north across the river to the Washington shoreline at latitude 45°36′55″ N, longitude 122°39′17″ W; thence west along the Washington shoreline to the point of origin (NAD 83). Entry into this safety zone is prohibited unless authorized by the Captain of the Port.

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 this rule under that Order. This rule 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 proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures act of DOT is unnecessary. This expectation is based on the fact that the regulated area established by the rule will encompass less than one mile of the Columbia River for a period of only one hour.

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” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit a portion of the Columbia River from 9:50 p.m. to 10:50 p.m. on July 4, 2002. This safety zone will not have significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only one hour in the evening when vessel traffic is low. Traffic will be allowed to pass through the zone with the permission of the Captain of the Port or his designated representatives on scene, if safe to do so. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 5 U.S.C. 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want 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 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).

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

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

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 M16475.1C, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion” is provided for temporary safety zones of less than one week in duration. This rule establishes a safety zone with a duration of one hour.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On February 6, 2002, we published a temporary final rule for waters adjacent to the San Onofre Nuclear Generating Station entitled “Security Zone; Waters adjacent to San Onofre, San Diego County, California” in the Federal Register (67 FR 5480) under § 165.T11-048. It has been in effect since October 25, 2001 and is set to expire 3:59 p.m. PDT on June 21, 2002.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Due to the terrorist attacks on September 11, 2001 and the warnings given by national security and intelligence officials, there is an increased risk that further subversive or terrorist activity may be launched against the United States. A heightened level of security has been established concerning all vessels operating in the waters adjacent to the San Onofre Nuclear Generating Station area. This security zone is needed to protect the United States and more specifically the personnel and property of the San Onofre Nuclear Generating Station. The original TFR was urgently required to prevent possible terrorist strikes against the United States and more specifically the people, waterways, and properties near the San Onofre Nuclear Generating Station. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security precautions were required and, if so, propose regulations responsive to existing conditions. We have determined the need for continued security regulations exists.

The Coast Guard plans to utilize the extended effective period of this TFR to engage in notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment with the Captain of the Port (COTP) San Diego. Therefore, the public will still have the opportunity to comment on this rule. The measures contemplated by the rule were intended to facilitate ongoing response efforts and prevent future terrorist attack. In this case, doing a NPRM will be repetitious in nature and since delay is inherent in the NPRM process, any delay in the effective date of this rule, is contrary to the public interest insofar as it may render individuals and facilities within and adjacent to the San Onofre Nuclear Generating Station vulnerable to subversive activity, sabotage or terrorist attack. The measures contemplated by this rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to San Onofre Nuclear Generating Station. Immediate action is required to accomplish these objectives and necessary to continue safeguarding these vessels and the surrounding area. Any delay in the effective date of this rule is impractical and contrary to the public interest.

The Coast Guard plans to publish a NPRM to establish permanent security zones that are temporarily effective under this rule. This revision preserves the status quo within the Port while permanent rules are developed.

For the reasons stated in the paragraphs above under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

On September 11, 2001, terrorists launched attacks on civilian and military targets within the United States killing large numbers of people and damaging properties of national significance. Vessels operating near the San Onofre Nuclear Generating Station present possible platforms from which individuals may gain unauthorized access to this installation, or launch terrorist attacks upon the waterfront structures and adjacent population centers.

In response to these terrorist acts, and in order to prevent similar occurrences, the Coast Guard has established a temporary security zone in the navigable waters of the United States adjacent to the San Onofre Nuclear Generating Station. This temporary security zone is necessary to provide for the safety and security of the United States of America and the people, ports, waterways and properties within the San Onofre Nuclear Generating Station area.

As of today, the need for this security zone still exists. The effective period of this temporary final rule will extend through 11:59 p.m. PST March 21, 2003. During this time, the Coast Guard plans to publish a notice of proposed rulemaking (NPRM) in the Federal Register , which will include a public comment period, and for a final rule to be put into effect without there being an interruption in the protection provided by this security zone.

This regulation extends the current security zone that prohibits all vessel traffic from entering, transiting or anchoring within a one nautical mile radius of San Onofre Nuclear Generating Station that is centered at the following coordinate: 33° 22′ 30″ N, 117° 33′ 50″ W.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act (PWSA) to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. This authority, under section 7 of the PWSA (33 U.S.C. 1226), supplements the Coast Guard's authority to issue security zones under The Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including Subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code of Federal Regulations.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

This temporary final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget 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 recent terrorist actions against the United States the implementation of this security zone is necessary for the protection of the United States and its people. Because these security zones are established in an area near the San Onofre Nuclear Generating Station that is seldom used, 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), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” includes small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

This security zone will not have a significant impact on a substantial number of small entities because the portion of the security zone that affects the San Onofre Nuclear Generating Station area is infrequently transited. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers 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 Chief Petty Officer Raymond Taylor, 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. 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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

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

Section 172(c)(1) of the CAA contains general requirements for States to adopt RACT  1 rules for major stationary sources of VOCs located in ozone nonattainment areas.

Section 182(b)(2)  2 of the CAA requires that states submit a revision to their SIP to include provisions to require RACT for each category of VOC  3 sources covered by a Control Techniques Guideline (CTG). RACT is required for major sources in moderate and above ozone nonattainment areas and for minor sources where EPA has issued a CTG. The CTGs provide information on available air pollution control techniques and provide recommendations on what the EPA considers the “presumptive norm” for RACT.

Under section 183 of the CAA as amended in 1990, entitled “Federal Ozone Measures,” the EPA was required to issue CTGs for 13 source categories by November 15, 1993. Two specific source categories, aerospace coatings and solvents, and shipbuilding operations were listed. The other 11 categories (as listed in 57 FR 18077, April 28, 1992) are Synthetic Organic Chemical Manufacturing industry (SOCMI) distillation, SOCMI reactors, wood furniture, plastic parts business machines, plastic parts coating (other), offset lithography, industrial wastewater, SOCMI batch processing, volatile organic liquid storage tanks, and clean-up solvents. To date, CTGs have been published for four of the thirteen source categories: SOCMI distillation, SOCMI reactors, wood furniture, and shipbuilding.

The EPA also made available Alternative Control Technology (ACT) documents for the CTG source categories for which CTG documents have not yet been published. These ACT documents provide much of the same information as the CTG documents, however, instead of establishing a presumptive norm for RACT rule, these documents provide options for control.

On April 28, 1992 (57 FR 18077), the EPA interpreted the CAA to allow a State to submit a non-CTG rule by November 15, 1992, or to defer submittal of a RACT rule for sources that the State anticipated would be covered by a post-enactment CTG. For post-enactment CTGs, the amended Act requires States to submit RACT rules in accordance with the schedule specified in the corresponding CTG document. If the EPA failed to issue a CTG by November 15, 1993, the responsibility shifted to the State to submit a non-CTG RACT rule for those sources by November 15, 1994.

In addition, if there are no major sources of VOC emissions in a CTG source category located in a nonattainment area, EPA policy allows a State to submit a formal statement of their nonexistence of such major sources (i.e., a negative declaration). On April 6 and June 20, 1994, the State of Louisiana submitted letters of negative declaration for the following CTG source categories: aerospace coatings and solvents, shipbuilding operations, offset lithography, plastic parts—business machines, plastic parts—other, and wood furniture. The EPA approved these letters on October 30, 1996, in 61 FR 55894.

A CTG document was subsequently published in April 1996, for wood furniture which lowered the threshold for a source to be considered major in the wood furniture source category to 25 tons per year or more in an ozone nonattainment area. On January 28, 1997, the State of Louisiana submitted a letter of negative declaration for the wood furniture category based on the lower major source threshold. The EPA approved this letter of negative declaration on December 2, 1997 (FR 62 63658), along with a conditional approval of a revision to the SIP to control VOC emissions utilizing RACT from the SOCMI batch processing source category. By this action, the EPA also fully approved revisions to the SIP to control VOC emissions utilizing RACT from the SOCMI distillation, SOCMI reactor, and clean-up solvents major source categories. On November 9, 1998 (FR 63 47429) EPA converted this SOCMI batch processing conditional approval to a full approval.

As a result of this November 9, 1998 action, the applicable requirements relating to VOC RACT rules of 12 of the 13 CTG source categories were met. The industrial wastewater source category, which is the subject of this action, was the only remaining CTG source category for which no action had been taken.

On April 29, 1994, the EPA issued ACT documents for Industrial Wastewater, Shipbuilding and Automobile refinishing. The Industrial Wastewater ACT is a compendium of three references. First, options for controlling emissions from industrial wastewater are covered in the draft CTG issued September, 1992 and announced for comment on December, 1993. Second, a document entitled “Revisions to Impacts of the Draft Industrial Wastewater Control Techniques Guideline” contains an overview of the changes that were made to the draft CTG to reflect changes to the Hazardous Organic NESHAP (HON). Also, the impacts of various control options were revised. Finally, the April 29, 1994 memorandum explained that the HON could be used as model rule for VOC control.

These documents were used by the Louisiana Department of Environmental Quality (LDEQ) in promulgating revisions, known as the “VOC RACT Rules,” to the Louisiana Administrative Code, LAC 33:III, Chapter 21, on September 20, 1995. The VOC RACT Rules were submitted to the EPA on December 15, 1995. These rules in part implemented requirements to control emissions from industrial wastewater at facilities with the potential to emit more than 50 tons/year of VOC's. LDEQ's wastewater VOC rules appear in section 2153 of LAC 33:III.

The LDEQ promulgated revisions to section 2153 on December 20, 1996, and submitted them (along with other revisions to LAC 33.III) to the EPA on April 30, 1997. These revisions to section 2153 involved changes to various VOC emission test methods.

The LDEQ again promulgated revisions to section 2153 on January 20, 1998, and submitted them (along with other revisions to LAC 33.III) to the EPA on February 2, 2000. These revisions to section 2153 involved changes to affected source categories.

The LDEQ again promulgated revisions to section 2153 on May 20, 1999, and submitted them (along with other revisions to LAC 33.III) to the EPA on September 7, 1999. These revisions to section 2153 involved numerous changes that were necessary for approval of the VOC RACT rule by the EPA.

The EPA has written a Technical Support Document that details the review that was performed on the wastewater VOC rules discussed above. Basically, these rules (LAC 33.III.2153) were compared to the HON to determine if they met the requirements of section 182(b)(2)(C) of the Clean Air Act.

The EPA is taking direct final action to approve revisions to the Louisiana SIP, to control VOC emissions from industrial wastewater facilities by means of RACT. Specifically, the EPA is approving LAC 33.III.2153, and all revisions to section 2153 up to and including those adopted on May 20, 1999.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the revisions to incorporate regulations to control VOC emissions from industrial wastewater facilities by means of RACT if adverse comments are received. This rule will be effective on August 19, 2002 without further notice unless we receive adverse comment by July 22, 2002. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 19, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-2002-0042. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of February 28, 2002 (67 FR 9214) (FRL-6822-7), EPA revised an exemption from the requirement of a tolerance for residues of the biochemical hydrogen peroxide. In the SUMMARY and the codified text, a phrase was inadvertently omitted. This document corrects those errors.

On page 9214, third column, the first sentence of the summary is corrected to read as follows: “This regulation establishes an amendment to an exemption from the requirement of a tolerance for residues of the biochemical hydrogen peroxide in or on all food commodities when applied/used at the rate of ≤ 1% hydrogen peroxide per application on growing and postharvest crops.”

The codified text is corrected in the regulatory text of this document.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because EPA is merely adding a phrase that was inadvertently omitted from the previously published final rule. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

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

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

On February 13, 2002, we published a temporary final rule for cruise ships entitled “Security Zones; Port of San Diego, California” in the Federal Register (67 FR 6648) under § 165.T11-030. It has been in effect since November 5, 2001 and is set to expire 11:59 p.m. PDT on June 21, 2002.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Due to the terrorist attacks on September 11, 2001 and the warnings given by national security and intelligence officials, there is an increased risk that further subversive or terrorist activity may be launched against the United States. A heightened level of security has been established around all cruise ships near the port of San Diego. These security zones are needed to protect the United States and more specifically the people, waterways, and properties near the port. The original TFR was urgently required to prevent possible terrorist strikes against the United States and more specifically the people, waterways, and properties in and near the port of San Diego. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security precautions were required and, if so, propose regulations responsive to existing conditions. We have determined the need for continued security regulations exists.

The Coast Guard will utilize the extended effective period of this TFR to engage in notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment with the Captain of the Port (COTP) San Diego. Therefore, the public will still have the opportunity to comment on this rule. The measures contemplated by the rule were intended to facilitate ongoing response efforts and prevent future terrorist attack. In this case, doing a NPRM will be repetitious in nature and since delay is inherent in the NPRM process, any delay in the effective date of this rule, is contrary to the public interest insofar as it may render individuals and facilities within and adjacent to cruise ships vulnerable to subversive activity, sabotage or terrorist attack. The measures contemplated by this rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to cruise ships. Immediate action is required to accomplish these objectives and necessary to continue safeguarding these vessels and the surrounding area. Any delay in the effective date of this rule is impractical and contrary to the public interest.

The Coast Guard will be publishing a NPRM to establish permanent security zones that are temporarily effective under this rule. This revision preserves the status quo within the Port while permanent rules are developed.

For the reasons stated in the paragraphs above under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

On September 11, 2001, terrorists launched attacks on commercial and public structures—the World Trade Center in New York and the Pentagon in Arlington, Virginia—killing large numbers of people and damaging properties of national significance. There is an increased risk that further subversive or terrorist activity may be launched against the United States based on warnings given by national security and intelligence officials. The Federal Bureau of Investigation (FBI) has issued warnings on October 11, 2001 and February 11, 2002 concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan have made it prudent for important facilities and vessels to be on a higher state of alert because Osama Bin Ladin and his Al Qaeda organization, and other similar organizations, have publicly declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

These heightened security concerns, together with the catastrophic impact that a terrorist attack against a cruise ship would have to the public interest, makes these security zones prudent on the navigable waterways of the United States. To mitigate the risk of terrorist actions, the Coast Guard has increased safety and security measures on the navigable waterways of the port of San Diego by establishing larger security zones around cruise ships. Vessels operating near cruise ships present possible platforms from which individuals may gain unauthorized access to these vessels or launch terrorist attacks upon these vessels or adjacent population centers. As a result, the Coast Guard is taking additional measures to prevent vessels or persons from accessing the navigable waters close to cruise ships in the port of San Diego.

As of today, the need for security zones around cruise ships still exists. The effective period of this temporary final rule will extend through 11:59 p.m. PST December 21, 2002. This will allow the Coast Guard time to publish a notice of proposed rulemaking (NPRM) in the Federal Register , which will include a public comment period, and for a final rule to be put into effect without there being an interruption in the protection provided by cruise ship security zones.

This regulation extends the current security zone that prohibits all vessels and people from approaching cruise ships that are underway or moored near San Diego, California. Specifically, no vessel or person may close to within 100 yards of a cruise ship that is entering, moored in, or departing the Port of San Diego.

A security zone is automatically activated when a cruise ship passes the San Diego sea buoy while entering port and remains in effect while the vessel is moored within in the Port of San Diego, California. When activated, this security zone will encompass a portion of the waterway described as a 100 yard radius around a cruise ship in the Port of San Diego. This security zone is automatically deactivated when the cruise ship passes the San Diego sea buoy on its departure from port. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act (PWSA) to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. This authority, under section 7 of the PWSA (33 U.S.C. 1226), supplements the Coast Guard's authority to issue security zones under The Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including Subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code of Federal Regulations.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

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) because these zones will encompass a small portion of the waterway for a limited duration.

The Port of San Diego can accommodate only a few cruise ships moored at the same time. Most cruise ships calls at each location occur on only one day each week, and are generally less than 18 hours in duration. Also, vessels and people may be allowed to enter the zones on a case-by-case basis with authorization from the Captain of the Port.

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.

For the same reasons stated in the Regulatory Evaluation section above, 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.

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

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

Administration of the U.S. load line regulations requires vessel owners or operators to submit certain information to the Coast Guard or the American Bureau of Shipping (which issues load lines on behalf of the Coast Guard). This load line collection of information is controlled by the Office of Management and Budget under the Office of Management and Budget (OMB) control no. 2115-0043.

Recently, a special load line regime was established through an interim rule for river barges operating on certain Lake Michigan routes. This interim rule was published in the Federal Register on April 23, 2002 (67 FR 19685), and is available electronically through the docket [USCG-1998-4623] web site at http://dms.dot.gov. It became effective on May 23, 2002, with the exception of two sections, 46 CFR 45.181 and 45.183, that contain collection-of-information requirements associated with the new regime.

Because these two sections required the collection of information, they could not become effective until they were reviewed and approved by the Office of Management and Budget. As required by 44 U.S.C. 3507(d), we submitted a copy of this interim rule to OMB for its review. On May 28, 2002, after reviewing the rule and the overall load line collection-of-information burden under control no. 2115-0043, OMB approved the collection of information required by this interim rule.

This is a summary of the Federal Communications Commission's Report and Order, FCC 02-152, adopted on May 16, 2002 and released on May 24, 2002. The full text of this document including the chart summary of the band 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 via the Internet. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

2. In this Report and Order , we make the following major determinations regarding the subject bands:

• Assign the 1390-1392 MHz band by Major Economic Areas (MEAs), the paired 1392-1395 MHz and 1432-1435 MHz bands by Economic Area Groups (EAGs), the 1670-1675 MHz and the 2385-2390 MHz bands on a single, nationwide basis, and the 1429.5-1432 MHz band on a site-by-site basis with frequency coordination.

• Permit open eligibility for initial licenses assigned by geographic area licensing in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands. Adopt technical standards that are both consistent with our part 27 rules and provide licensees flexibility.

• License telemetry on a primary basis in the 1429.5-1432 MHz band and on a secondary basis in the 217-220 MHz and 1427-1429.5 MHz bands using a frequency coordinated site-by-site approach consistent with the technical specifications provided for telemetry operations under our part 90 rules, as modified herein.

• Adopt our proposed framework for a ten-year license term from the date of grant in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands. Require licensees to demonstrate that they are providing substantial service when they file their renewal application.

• Allow licensees in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands to partition and/or disaggregate their licenses.

• Apply the general competitive bidding rules set forth in part 1, subpart Q, of the Commission's Rules to the paired 1392-1395 and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands. Adopt small business size standards for these bands, but decline to adopt a public safety bidding credit.

• Require non-Government users to file an application on the Universal Licensing System (ULS) requesting Frequency Assignment Subcommittee (FAS) coordination of fixed sites and mobile operations within the protection radii of co-primary Government incumbents. We specify that geographic area licensees are responsible for determining whether a particular operation requires FAS approval. We also clarify that a licensee may request coordination of multiple fixed and mobile stations via a single application. Finally, we indicate that users of the Low Power Radio Services (LPRS) are not required to coordinate with FAS.

• Hold that radioastronomy, radiosondes, and the Earth Exploration Satellite Service operations will be protected by out-of-band emission limits.

• Establish coordination procedures for licensees in the 2385-2390 MHz band operating near non-Government aeronautical flight-test telemetry sites and interim coordination procedures for terrestrial licenses along the Canadian and Mexican borders.

• Implement the band “flip” portion of the AHA-Itron Joint Agreement and switch the primary allocation between Wireless Medical Telemetry Service (WMTS) in the 1427-1429.5 MHz band and Telemetry in the 1429.5-1432 MHz band, in seven defined geographic areas.

• Limit the field strength telemetry in the 1427-1432 MHz band may radiate—into the WMTS portion of the band—to a measured or predicted field strength of 150 uV/m at the site of any WMTS operation.

• Limit the field strength that facilities in the 1392-1395 MHz band may radiate—into the WMTS band at 1395-1400 MHz—to a measured or predicted field strength of 150 uV/m at the site of any WMTS operation.

3. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making 67 FR 7113, February 15, 2002, ( Service Rules Notice ). The Commission sought written public comment on the proposals in the Service Rules Notice, including comment on the IRFA. The comments received are discussed further. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

4. In this Report and Order, we adopt rules for the licensing and operation of fixed and mobile services in the 216-220 MHz, 1390-1395 MHz, 1427-1429.5 MHz, 1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390 MHz bands, pursuant to the provisions of the Communications Act of 1934, as amended, the Omnibus Budget Reconciliation Act of 1993 (OBRA-93), and the Balanced Budget Act of 1997 (BBA-97). These seven frequency bands have a variety of continuing Government protection requirements and incumbent Government and non-Government uses. Despite these constraints and the relatively narrow bandwidth contained in each of the bands, we believe that the rules adopted herein will foster a variety of potential applications in both new and existing services. The transfer of these bands to non-Government use should enable the development of new technologies and services, provide additional spectrum relief for congested private land mobile frequencies, and fulfill our obligations as mandated by Congress to assign this spectrum for non-Government use.

5. The Report and Order also establishes competitive bidding rules and small business definitions for the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, and the paired 1392-1395 MHz and 1432-1435 MHz bands similar to those applied to the WCS 2.3 GHz band and the 700 MHz Guard Bands. Consistent with the Commission's responsibility under Section 309(j) to promote opportunities for, and disseminate licenses to, a wide variety of applicants, the Report and Order adopts small business size standards and bidding preferences for qualifying bidders that will provide such bidders with opportunities to compete successfully against large, well-financed entities. Specifically, with respect to the aforementioned bands, we will define a “small business” as any entity with average annual gross revenues for the three preceding years not exceeding $40 million, and a “very small business” as any entity with average annual gross revenues for the three preceding years not exceeding $15 million. Correspondingly, we will adopt a bidding credit of 15 percent for “small businesses” and a bidding credit of 25 percent for “very small businesses.” This bidding credit structure is consistent with our standard schedule of bidding credits, which may be found at § 1.2110(f)(2) of the Commission's rules. All of the commenters addressing this issue support our proposal to adopt the two small business size standards that the Commission adopted for the WCS 2.3 GHz band and the 700 MHz Guard Bands. As we noted in the Service Rules Notice, the capital requirements and characteristics of the services proposed in the aforementioned bands are comparable to those found in the WCS 2.3 GHz band and 700 MHz Guard Bands. Consequently, as with the WCS 2.3 GHz band and 700 MHz Guard Bands, we believe that these two size standards will provide a variety of businesses with the opportunity to participate in the auction of licenses for this spectrum and will afford such licensees, who may have varying capital costs, substantial flexibility for the provision of services. The Commission has long recognized that bidding preferences for qualifying bidders provides such bidders with an opportunity to compete successfully against large, well-financed entities. The Commission also has found that the use of tiered or graduated small business definitions is useful in furthering our mandate under Section 309(j) to promote opportunities for and disseminate licenses to a wide variety of applicants.

6. Although no comments were submitted specifically in response to the IRFA, some commenters expressed concern with our proposals to license new services on a wide geographic area basis. For example, the National Telecommunications Cooperative Association (NTCA) and the Rural Telecommunications Group (RTG) support smaller geographic area licensing, rather than the use of nationwide or very large economic areas, in order to promote smaller carriers and rural telecommunications development. We have considered the effect of these rule changes on small entities and considered other alternatives. We expect, however, that our actions will benefit all entities subject to these rule changes, including small entities.

7. The policies and rules adopted in this Report and Order affect all small entities that seek to acquire licenses in the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, and the paired 1392-1395 MHz and 1432-1435 MHz bands. As noted above, the Commission has adopted small business size standards that define a “small business” as any entity with average annual gross revenues for the three preceding years not exceeding $40 million and a “very small business” as any entity with average annual gross revenues for the three preceding years not exceeding $15 million. The Small Business Administration (SBA) has approved these small business size standards for the aforementioned bands. However, the Commission cannot know until the auction begins how many entities will seek small or very small business status. The Commission will allow partitioning and disaggregation, yet it cannot determine in advance how many licensees will partition their license areas or disaggregate their spectrum blocks. In view of our lack of knowledge of these factors, it is therefore assumed that, for purposes of our evaluations and conclusions in the FRFA, all of the prospective licenses are small entities, as that term is defined by the SBA or the Commission's small business definitions for these bands.

8. 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 proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Nationwide, as of 1992, there were approximately 275,801 small organizations. “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 ninety-six 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, we estimate that 81,600 (ninety-one percent) are small entities.

9. Wireless Service Providers. The SBA has developed a definition for small business within the two separate categories of (1) Cellular and (2) Other Wireless Telecommunications or Paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's Telephone Trends Report data, 1,495 companies reported that they were engaged in the provision of wireless service. Of these 1,495 companies, 989 reported that they have 1,500 or fewer employees and 506 reported that, alone or in combination with affiliates, they have more than 1,500 employees. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 989 or fewer small wireless service providers that may be affected by the rules. Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules adopted herein. Except as noted, these services are associated with the above SBA small business size standard.

10. With respect to the 1390-1392 MHz band, the Commission will award a single 2 MHz license in each of fifty-two Major Economic Areas (MEAs). For the 1670-1675 MHz, and 2385-2390 MHz bands, the Commission will award a single nationwide license in each band. For the paired 1392-1395 MHz and 1432-1435 MHz bands, the Commission will award a pair of 1.5 MHz licenses in each of six Economic Area Groupings (EAGs). For the 1432-1435 MHz band, the Commission will award licenses on a site by-site basis. The Commission does not yet know how many applicants or licensees in any of these bands will be small entities.

11. Existing services in other bands include entities that might be affected by the rules, either as existing licensees or potential applicants or licensees. Incumbent services in the 1427-1429.5 MHz and 1429.5-1432 MHz bands include wireless medical telemetry (WMTS) and general telemetry.

12. Telemetry. Incumbent non-medical telemetry operators in the 1427-1429.5 MHz and 1429.5-1432 MHz bands include Itron, Inc., Pueblo Service Company of Colorado, E Prime, Inc., and large manufacturers such as Deere and Company, Caterpillar, and General Dynamics. None of these licensees are likely to be small businesses. Itron, Inc. is the primary user of the 1427-1429.5 MHz and 1429.5-1432 MHz bands. Itron, Inc., with an investment of $100 million in equipment development, is not likely to be a small business. One licensee, Zytex, a manufacturer of high-speed telemetry systems, may be a small business. The Commission does not yet know how many applicants or licensees in these bands will be small entities.

13. WMTS. Users of medical telemetry are hospitals and medical care facilities, some of which are likely to be small businesses. The broad category of “Hospitals” consists of the following categories and the following small business providers with Annual Receipts of $29 million or less: “General Medical and Surgical Hospitals,” “Psychiatric and Substance Abuse Hospitals,” and “Specialty Hospitals.” For all these health care providers, census data indicate that there is a combined total of 330 firms that operated in 1997, of which 237 or fewer had revenues of less than $25 million. An additional 45 firms had annual receipts of $25 million to $49.99 million. We therefore estimate that most Hospitals are small, given SBA's size categories.

14. The broad category of “Nursing and Residential Care Facilities” consists of the following categories and the following small business size standards. The category of “Nursing and Residential Care Facilities with Annual Receipts of $6 million or less' consists of: Residential Mental Health and Substance Abuse Facilities, Homes for the Elderly, and Other Residential Care Facilities. The category of “Nursing and Residential Care Facilities with Annual Receipts of $8.5 million or less' consists of Residential Mental Retardation Facilities. The category of “Nursing and Residential Care Facilities with Annual Receipts of less than $11.5 million” consists of: Nursing Care Facilities and Continuing Care Retirement Communities. For all of these health care providers, census data indicate that there is a combined total of 18,011 firms that operated in 1997. Of these, 16,165 or fewer firms had annual receipts of below $5 million. In addition, 1,205 firms had annual receipts of $5 million to $9.99 million, and 450 firms had receipts of $10 million to $24.99 million. We therefore estimate that a great majority of Nursing and Residential Care Facilities are small, given SBA's size categories.

15. Applicants for licenses to provide terrestrial fixed and mobile services in the paired 1392-1395 MHz and 1432-1435 MHz bands, and the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands will be required to submit short-form auction applications using FCC Form 175. In addition, winning bidders must submit long-form license applications through the Universal Licensing System using FCC Form 601, FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms. Licensees will also be required to apply for an individual station license by filing FCC Form 601 for those individual stations that (1) require submission of an Environmental Assessment under § 1.1307 of our Rules; (2) require international coordination; (3) would operate in the quiet zones listed in § 1.924 of our Rules; or (4) require coordination with the Frequency Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory Committee (IRAC).

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. Regarding our decision to apply generally our part 27 rules to the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, and to the paired 1392-1395 MHz and 1432-1435 MHz bands, we do not anticipate any adverse impact on small entities. The flexibility afforded by part 27 of our rules should benefit large and small entities alike, because licensees will be in a stronger position to meet changes in demand for services. Under this approach, all licensees will have the freedom to determine the services to be offered and the technologies to be used in providing those services. An alternative to this decision would have been to determine specific allowable services in each frequency band and apply the applicable rule part to the licensing of such services. This approach, however, would be unsatisfactory because it is too restrictive, and in any event, it is unclear that this would benefit small entities more than the flexible licensing approach we have decided upon today.

18. Regarding our decision to license the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands by geographic area, we anticipate that, on balance small entities will benefit from this licensing approach. A geographic licensing approach in these bands is consistent with the Commission's overall spectrum management goals in that it allows licensees to quickly respond to market demand. Small entities that acquire spectrum licensed on a geographic area basis, will benefit from such flexibility. Moreover, we have attempted to strike a balance here by using varying sizes of geographic areas. For example, small entities may be more interested in spectrum licensed by smaller geographic areas rather than in spectrum licensed on a nationwide basis. Consequently, we have decided to license the 1390-1392 MHz band using fifty-two MEAs, and license the paired 1392-1395 MHz and 1432-1435 MHz bands using six EAGs. Combined with our decision to employ flexible use licensing, which includes band manager licensing (see discussion below), small entities should be able to acquire spectrum that fits their individual needs. An alternative to our decision to use geographic areas to license the subject frequency bands would have been to employ a site-by-site licensing approach. Site-by-site licensing, however, would be an inefficient licensing method for the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands, because it would cause a greater strain on Commission resources and have less flexibility for licensees.

19. Regarding our decision to license secondary telemetry in the 217-220 MHz and 1427-1429.5 MHz bands and primary telemetry in the 1429.5-1432 MHz band on a site-by-site basis, we anticipate no adverse impact on small entities. In fact, our approach here is particularly beneficial for small entities that have more localized spectrum needs, because such entities can apply for just the site that is needed for their communications systems. An alternative to this approach would have been to license telemetry in these bands on a geographic area basis. This is unsatisfactory, however, because, inter alia, of potential harmful interference issues that a geographic overlay would entail.

20. Regarding our decision to license the 1390-1392 MHz band using a single 2 MHz block in each MEA, we do not anticipate any adverse impact on small entities. Our approach here provides maximum flexibility for both small and large entities to offer a wide range of communications services. In addition, in those cases in which less than 2 MHz is required, band managers would be able to coordinate spectrum under their control so as to maximize its use. An alternative to this decision would have been to divide the spectrum available in the 1390-1392 MHz band into two or more blocks. While this might promote diversity, it makes more sense to license this band using a single 2 MHz spectrum block in order to allow both small and large entities the opportunity to offer a wider range of services and to quickly meet changes in market demand.

21. Regarding our decision to license the paired 1392-1395 MHz and 1432-1435 MHz bands using two pairs of 1.5 MHz spectrum blocks, we do not anticipate any adverse impact to small entities. Our approach here promotes competition by allowing more than one licensee in each market and thus offers a greater opportunity for small entities to acquire spectrum. An alternative to this approach would have been to license these bands using a single pair of 3 MHz spectrum blocks. This approach, however, is less desirable than the one we adopt today because of the competition and diversity benefits realized by dividing the spectrum into two blocks.

22. Regarding our decision to adopt the AHA-Itron Joint Agreement's band flip proposal, we do not anticipate any adverse impact to small entities. Our implementation of this private agreement should benefit small and large entities by allowing telemetry and WMTS to operate where such services are needed the most. An alternative to this approach would have been to keep telemetry primary only in the 1429.5-1432 MHz band and WMTS primary only in the 1427-1429.5 MHz band. However, allowing telemetry and WMTS to operate in the seven geographic “carve-out” areas in each other's primary allocation, allows greater flexibility in operations while avoiding harmful interference. The geographic “carve-out” areas refer to those service areas specifically designated in the AHA-Itron Joint Agreement where telemetry may operate on a primary basis in the 1427-1429 MHz band and 1431.5-1432 MHz band; and where WMTS may operate on a primary basis in the 1429-1431.5 MHz band.

23. Regarding our decision to license the 1670-1675 MHz band using a single 5 MHz spectrum block, we do not believe that there will be any adverse impact on small entities. Although dividing this spectrum into two or more blocks might offer more opportunities for small entities to compete for a license, we agree with the commenters that a single 5 MHz spectrum block will promote the development of new technologies and services and therefore, promotes the public interest.

24. Regarding our decision to license the 2385-2390 MHz band using a single 5 MHz spectrum block, we do not believe that there will be any adverse impact on small entities. Although dividing this spectrum into two or more blocks might offer more opportunities for small entities to compete for a license, this is outweighed by the benefits that a larger spectrum block provides in terms of flexibility. In addition, we note that no commenters, including small entities, proposed an alternate spectrum block size for this frequency band.

25. Regarding our decision to employ a flexible use licensing scheme for the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1394 MHz and 1432-1435 MHz bands (see paras. 38-39, supra) we do not anticipate any adverse impact on small entities. In fact, this approach should generally provide small entities with greater opportunities to acquire spectrum specifically tailored for their needs. For example, through a band manager licensee, small entities can obtain spectrum rights that are suited for operations of a local nature, rather than obtaining an entire geographic area that would result in less efficient spectrum use. An alternative to this approach would have been to prohibit band managers from being licensed in these frequency bands. We find that this would be unsatisfactory, however, because the results would have been less efficient spectrum markets and less spectrum access for small entities.

26. Regarding our decision to require a showing of “substantial service” at license renewal time, ( see paras. 72-73, supra ) we do not anticipate any adverse impact on small entities. An alternative would have been to adopt a “minimal coverage” requirement. We believe, however, that the substantial service standard is better because it will provide both small and large entities the flexibility to determine how to best implement their business plans based on actual service to end users.

27. Regarding our decision to allow licensees in the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands to partition and/or disaggregate their spectrum, (see paras. 80-83, supra) we do not anticipate any adverse impact on small entities. In fact, allowing licensees to partition/disaggregate their licensed spectrum should improve opportunities for small entities to acquire spectrum for their particular needs. An alternative to this approach would have been to prohibit partitioning/disaggregation, but we received no comments proposing such a prohibition.

28. Regarding our decision to require frequency coordination for primary and secondary telemetry operations in the 217-220 MHz, 1427-1429.5 MHz and 1429.5-1432 MHz bands ( see paras. 88-98, supra ) we do not anticipate any adverse impact on small entities. Although there are certain costs associated with filing an application through an FCC-certified frequency coordinator, on balance, the benefits of frequency coordination, especially the avoidance of harmful interference, outweigh any costs. An alternative to this approach would have been to not require frequency coordination, but this is unacceptable because of high congestion, primary incumbent operations that must be protected, and the fact that licensees in these bands must share frequencies.

1. Pursuant to Sections 1, 4(i), 301, 302, 303(f) and (r), 309(j) and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 301, 302, 303(f) and (r), 309(j) and 332, this Report and Order is adopted.

2. Parts 1, 2, 27, 90, and 95 of the Commission's Rules are amended as specified in Appendix E, effective 60 days after publication in the Federal Register . Information collections contained in §§ 27.106 and 90.176 will be effective upon OMB approval.

3. The Petition for Rulemaking filed by Data Flow Systems, is granted, in part, and denied in part as described herein.

4. 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 Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's First Report and Order in CC Docket No. 02-6 released on June 13, 2002. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC, 20554.

1. In this Order, we adopt a framework for the treatment of funds collected for the schools and libraries support mechanism that have, through the normal operation of the program, not been disbursed. In taking this action today, we balance the statutory requirements in section 254 of providing eligible schools and libraries with access to discounted telecommunications services and of ensuring that the universal service support mechanisms are specific and predictable. This, in turn, will allow contributions to universal service to remain predictable for carriers and, ultimately, will inure to the benefit of their customers. We are committed to ensuring that eligible schools and libraries have access to sufficient universal service support consistent with the statute and therefore adopt a rule to ensure that unused schools and libraries funds are carried forward for disbursement in subsequent funding years. At the same time, we find that the public interest is best served by our action to stabilize contributions to universal service for the immediate future, while we consider fundamental reform to the way in which universal service contributions are assessed on contributors and recovered from consumers. As we explained in the Contribution FNPRM , 67 FR 11268, March 13, 2002, numerous changes in the marketplace and the operation of the current assessment system have contributed to broad fluctuations in the contribution base of the universal service support mechanisms since our adoption of the current assessment methodology. These fluctuations require us to consider reform to ensure stability of the universal service fund, which should help ensure predictability in that fund. We conclude that our actions today strike an appropriate balance by helping to minimize and stabilize the contribution factor for the immediate future, while maintaining an appropriate level of support for all universal service support mechanisms, including the schools and libraries program.

2. Consistent with the congressional mandate in section 254 that carriers contribute to the “specific [and] predictable” universal service support mechanisms, the Commission has endeavored to ensure that universal service contribution obligations remain predictable so that carriers anticipate their payments appropriately. Over the past several years, however, we have witnessed increasing upward pressure on contributions caused by a variety of events, including declining interstate revenues coupled with increased demand for universal service support. For example, consistent with section 254(e) of the Act, the Commission recently took steps to replace implicit subsidies in interstate access charges with explicit universal service support. Implementation of these statutory requirements coupled with changes in the telecommunications marketplace have led to broad fluctuations in the contribution base and rising contribution obligations. For these reasons, we recently sought comment on whether and how to change the existing contribution methodology.

3. While we are examining whether more fundamental reform of the basis for assessing universal service contributions is warranted, we believe it is important at this time to stabilize universal service contributions and maintain predictability for the universal service support mechanisms for the immediate future. This, in turn, will allow contributions to remain predictable for carriers, and, ultimately, benefit consumers. We therefore conclude that, in order to maintain fund predictability for the immediate future, unused funds from the schools and libraries support mechanism shall, in accordance with the public interest, be applied to stabilize or reduce the amount of contributions to the universal service fund for no more than the next three quarters, which should provide us sufficient time to complete our review of the contribution methodology and implement any changes adopted in that proceeding. Specifically, we shall apply unused funds to reduce the contribution factors for the third and fourth quarters of 2002, and first quarter 2003, if necessary. We intend to complete our examination of the issues in the contribution methodology proceeding and implement appropriate rules no later than first quarter 2003. We will endeavor, however, to complete the proceeding at an earlier date. In that event, such unused funds from the schools and libraries support mechanism would be carried forward for use by eligible schools and libraries in subsequent funding years. Consistent with the requirement that carriers contribute to a specific and predictable universal service support mechanism, we expect any changes to the contribution methodology that are ultimately adopted to address these concerns regarding the current contribution assessment system.

4. We take this action today with careful consideration of the effect of our decision on the schools and libraries support mechanism. For the last five years, the schools and libraries support mechanism has provided discounts that have enabled millions of school children and library patrons to obtain access to modern telecommunications and information services. In fact, as of May 2002, schools and libraries have received over $8.25 billion in funding commitments. Although the successes of this program are impressive, we have been unable to fulfill the demands from all of the Nation's schools and libraries. For example, in order to fully fund current demand for Funding Year 5, we would have to more than double the existing $2.25 billion funding cap on the schools and libraries mechanism.

5. In light of this high demand for discounts, we believe that, at the close of this period for the Commission to consider the reforms that should be implemented to address carriers' contribution obligations, it is appropriate to carry forward unused funds to increase disbursements to schools and libraries program in subsequent funding years. Specifically, we direct that, effective no later than second quarter 2003, any unused funds from the schools and libraries support mechanism in any given year shall, consistent with the public interest, be carried forward for disbursement in subsequent funding years of the schools and libraries support mechanism. Such action would ensure that the funds that are unused by schools and libraries from prior years, through normal operation of the program, are available to schools and libraries in future years. We intend to develop specific rules implementing this policy not later than second quarter 2003 in order to maximize the availability of these funds for schools and libraries. We also will continue to explore procedural and programmatic changes to the schools and libraries support mechanism that may help reduce the amount of funds that are not disbursed. These actions together will help us to most effectively implement the goals of section 254(h) by providing for discounts as close as possible to the level of the annual $2.25 billion cap.

6. After consideration of the two proposals relating to the treatment of unused funds collected for the schools and libraries mechanism, we conclude that unused funds from the schools and libraries support mechanism shall, consistent with the public interest, be applied to stabilize the universal service contribution factor for a period not to exceed the next three quarters, beginning with third quarter 2002, while the Commission considers reform of the contribution system. We direct the Wireline Competition Bureau and USAC to apply such unused funds to stabilize or reduce universal service contributions in accordance with the public interest for the third and fourth quarters of 2002, and first quarter 2003, in a manner consistent with the Commission's prior treatment of unused funds from Funding Year 1. Thereafter, we find that any unused funds from the schools and libraries support mechanism shall be carried forward to increase disbursements to schools and libraries in subsequent years. We find that such action is consistent with section 254 and the public interest by ensuring that contributions to universal service remain predictable, without jeopardizing the sufficiency of any of the universal service support mechanisms. Accordingly, we amend § 54.507 of our rules.

7. We find that this framework will benefit contributors, and ultimately their customers, by stabilizing the contribution factor in the short term, while also maintaining an appropriate level of support for all of the universal service support mechanisms, including the schools and libraries support mechanism. When considering issues relating to funding for the schools and libraries support mechanism, we must also consider the funding requirements of the other universal service programs and their cumulative impact on contributors and consumers. We conclude that the framework adopted today reflects a careful balance between providing sufficient support for all the universal service support mechanisms and keeping contributions at a predictable level for the immediate future, while we consider the need for reform of our contribution assessment methodology.

8. Over the last four years, overall demand on the universal service fund has grown considerably, in large part as a result of implementation of the statute's requirements to ensure that support is explicit and sufficient. In 1997, about $1.9 billion was disbursed from the universal service fund. We estimate that approximately $5.5 billion will be disbursed from the universal service fund in 2002. At the same time, the universal service revenue base has become smaller, and interstate revenues have declined for interexchange carriers. Several factors may be responsible for the diminishing revenue base, including the migration of traditional long distance services to new technologies, bundled wireless service packages, and price competition due to Bell entry into the long distance marketplace. Accordingly, the contribution factor and therefore carrier contribution obligations have increased, and carriers have generally passed through much of these increases to consumers. In light of these changes in the market and their impact on carrier contributions and consumers, we recently sought comment on whether and how to modify the current contribution assessment methodology. We recognized there that these changes in the marketplace, coupled with our current contribution methodology, have caused broad fluctuations in the contribution base. This, in turn, raises the issue of stability and predictability of the universal service fund. Thus, until we complete our assessment of the current contribution methodology, we believe that it is appropriate to stabilize or lower the contributions to universal service. In this way, we will be better able to ensure in the near term that the fund remains predictable for contributors and consumers.

9. Some commenters argue that using unused funds to reduce the contribution factor would not necessarily benefit consumers by reducing the line-items on consumers' bills. While carriers currently have the flexibility to recover from their customers the contributions to universal service, contributors may not shift more than an equitable share of their contributions to any customer or group of customers, and must provide accurate, truthful, and complete information regarding the nature of the charge. We would therefore expect that our efforts to stabilize the contribution factor would be reflected in any charges passed through to consumers. Several large contributors to universal service indicate in their comments to the Commission that a reduction in the contribution factor would be passed on to consumers. Therefore, we find that it is reasonable to conclude that consumers will ultimately benefit from actions that stabilize the steady growth in the contribution factor.

10. In addition, we do not agree with commenters that suggest that our actions in the short term would contravene the intent of the schools and libraries support mechanism. Indeed, as of May 2002, schools and libraries have received over $8.25 billion in funding commitments. Our action to utilize unused funds for a period not longer than the next three quarters does not alter the $2.25 billion cap in any way, and such funds will continue to be made available annually to schools and libraries in a manner that is consistent with section 254 of the Act.

11. Although we believe our actions strike an appropriate balance today, Commission action in the contribution methodology proceeding will need to address concerns regarding fund predictability. We intend to take action in the contribution methodology proceeding and implement any changes adopted in that proceeding no later than April 1, 2003. Thus, once this window for action closes, we conclude it will serve the public interest to carry forward unused funds from the schools and libraries support mechanism for use by eligible schools and libraries in subsequent funding years.

12. We recognize that the current demand for discounts in Funding Year 5 significantly exceeds the $2.25 billion funding cap. In fact, in order to fully fund current demand for Funding Year 5, we would have to more than double the existing cap on the schools and libraries mechanism. In light of this high demand for discounts and based on the record, we believe that, not later than second quarter of 2003, unused schools and libraries funds should be carried forward to increase disbursements to schools and libraries program in subsequent years.

13. Furthermore, because unused funds remain, as a result of normal program operation and, at least partially, for reasons out of applicants' control, we conclude that it will be appropriate in the future to carry forward unused funds from the schools and libraries mechanism for use in subsequent years. To that end, in conjunction with seeking comment as to the treatment of unused funds in the Further Notice, 67 FR 7327, February 19, 2002, we also sought comment on why applicants and providers may fail to fully use committed funds and whether other operational changes could be made to reduce the amount of unused funds. We are considering the record and the types of program changes that may decrease the amount of unused funds from the schools and libraries support program in the future. In addition, we note that USAC recently developed, in coordination with the Commission staff, new procedures for service provider changes that increase the amount of funds disbursed each year and a new Form 500 that allows applicants to reduce or cancel funding commitments so that those funds can be made available to applicants during the same funding year. This action, in combination with our decision to carry forward unused funds in the schools and libraries support mechanism in the future, will help us to ensure that schools and libraries make maximum use of the funding available under $2.25 billion annual cap.

14. We revise § 54.507(a) of the Commission's rules to provide that unused funds from the schools and libraries support mechanism may be applied to stabilize or reduce the amount of such contributions to the universal service fund for no more than the next three quarters, beginning third quarter 2002. We conclude that the amendments to our rules adopted herein shall be effective June 20, 2002. The final rules must take effect prior to 30 days after publication in the Federal Register in order for the Wireline Competition Bureau to announce the contribution factor for third quarter 2002. Such action will serve the public interest because the final rules allow for stabilization or reductions in the contribution factor. Accordingly, pursuant to the Administrative Procedure Act, we find good cause to depart from the general requirement that final rules take effect not less than 30 days after their publication in the Federal Register .

15. This Report and Order does not contain any new or modified information collection(s) subject to the PRA of 1995, Public Law 104-13.

16. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making and Order ( Further Notice ). The Commission sought written public comment on the proposals in the Further Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

17. The Commission recently initiated a review of our rules governing the schools and libraries universal service support mechanism. Among other things, the Commission sought comment on whether it should amend its rules regarding the treatment of unused funds from the schools and libraries mechanism. In this Order, we revise § 54.507(a) of the Commission's rules to provide that unused funds from the schools and libraries support mechanism may be applied to stabilize or reduce the amount of contributions to the universal service fund for no more than the next three quarters, beginning with the third quarter 2002. Thereafter, unused funds from the schools and libraries mechanism shall be carried forward for use in subsequent funding years of the schools and libraries program. Our actions today strike an appropriate balance by helping to minimize and stabilize the contribution factor for the immediate future, while maintaining support for the schools and libraries program.

18. There were no comments filed that specifically addressed the rules and policies presented in the IRFA.

19. 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 proposed rules, if adopted herein. 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.”

20. Nationwide, as of 1992, there were approximately 275,801 small organizations. The term “small governmental jurisdiction” is defined as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 1997, there were approximately 87,453 government jurisdictions in the United States. This number includes 39,044 counties, municipal governments, and townships, of which 27,546 have populations of fewer than 50,000 and 11,498 counties, municipal governments, and townships have populations of 50,000 or more. Thus, we estimate that the number of small government jurisdictions must be 75,955 or fewer. Many such small government jurisdictions contain and administer programs and funds for schools and libraries. Small entities potentially affected by the proposals herein include eligible schools and libraries and the eligible service providers offering them discounted services, including telecommunications service providers, Internet Service Providers (ISPs) and vendors of internal connections.

21. Under the schools and libraries universal service support mechanism, which provides support for elementary and secondary schools and libraries, an elementary school is generally “a non-profit institutional day or residential school that provides elementary education, as determined under state law.” A secondary school is generally defined as “a non-profit institutional day or residential school that provides secondary education, as determined under state law,” and not offering education beyond grade 12. For-profit schools and libraries, and schools and libraries with endowments in excess of $50,000,000, are not eligible to receive discounts under the program, nor are libraries whose budgets are not completely separate from any schools. Certain other statutory definitions apply as well. The SBA has defined as small entities elementary and secondary schools and libraries having $6 million or less in annual receipts. In funding year 2 (July 1, 1999 to June 20, 2000) approximately 83,700 schools and 9,000 libraries received funding under the schools and libraries universal service mechanism. Although we are unable to estimate with precision the number of these entities that would qualify as small entities under SBA's definition, we estimate that fewer than 83,700 schools and 9,000 libraries would be affected annually by the rules adopted in this Order, under current operation of the program.

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

23. Local Exchange Carriers. Neither the Commission nor the SBA has developed a definition for small providers of local exchange services. The closest applicable definition under the SBA rules is for wired telecommunications carriers. This provides that a wired telecommunications carrier is a small entity if it employs no more than 1,500 employees. According to our most recent data report, 1,335 carriers classified themselves as incumbent local exchange carriers. We do not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of local exchange carriers that would qualify as small business concerns under the SBA's definition. Of the 1,335 incumbent carriers, 13 entities are price cap carriers that are not subject to these rules. Consequently, we estimate that fewer than 1,322 providers of local exchange service are small entities or small incumbent local exchange carriers that may be affected by the decisions adopted in this Order.

24. Interexchange Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA rules is for wired telecommunications carriers. This provides that a wired telecommunications carrier is a small entity if it employs no more than 1,500 employees. According to the most recent Trends Report, 204 companies reported that they were engaged in the provision of interexchange services. As some of these carriers have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 204 small entity IXCs that may be affected by the decisions adopted in this Order.

25. Competitive Access Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive access services providers (CAPs). The closest applicable definition under the SBA rules is for wired telecommunications carriers. This provides that a wired telecommunications carrier is a small entity if it employs no more than 1,500 employees. According to our most recent data, there are 349 CAPs. We do not have data specifying the number of these carriers that are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of CAPs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are less than 349 small entity CAPs that that may be affected by the decisions adopted in this Order.

26. Cellular and Wireless Telephony. Neither the Commission nor the SBA has developed a definition of small entities specifically for wireless telephony. The closest definition is the SBA definition for cellular and other wireless telecommunications or paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's most recent Telephone Trends Report data, 1,495 companies reported that they were engaged in the provision of wireless service. Of these 1,495 companies, 989 reported that they have 1,500 or fewer employees and 506 reported that, alone or in combination with affiliates, they have more than 1,500 employees. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 989 or fewer small wireless service providers that may be affected by the decisions adopted in this Order.

27. Other Wireless Services. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to wireless services other than wireless telephony. The closest applicable definition under the SBA rules is again that of cellular and other wireless telecommunications, under which a service provider is a small entity if it employs no more than 1,500 employees. According to the most recent Trends Report, 477 providers classified themselves as paging services, wireless data carriers or other mobile service providers. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 477 wireless service providers that that may be affected by the decisions adopted in this Order.

28. Under the new NAICS codes, SBA has developed a small business size standard for “On-line Information Services,” NAICS Code 514191. According to SBA regulations, a small business under this category is one having annual receipts of $21 million or less. According to SBA's most recent data, there are a total of 2,829 firms with annual receipts of $9,999,999 or less, and an additional 111 firms with annual receipts of $10,000,000 or more. Thus, the number of On-line Information Services firms that are small under the SBA's $21 million size standard is between 2,829 and 2,940. Further, some of these Internet Service Providers (ISPs) might not be independently owned and operated. Consequently, we estimate that there are fewer than 2,940 small entity ISPs that may be affected by the decisions and rules of the present action.

29. The Commission has not developed a definition of small entities applicable to the manufacturers of internal network connections. The most applicable definitions of these kinds of small entities are the definitions under the SBA rules applicable to manufacturers of “Radio and Television Broadcasting and Communications Equipment” (RTB) and “Other Communications Equipment.” According to the SBA's regulations, manufacturers of RTB or other communications equipment must have 750 or fewer employees in order to qualify as a small business. The most recent available Census Bureau data indicates that there are 1,187 companies with fewer than 1,000 employees in the United States that manufacture radio and television broadcasting and communications equipment, and 271 companies with less than 1,000 employees that manufacture other communications equipment. Some of these manufacturers might not be independently owned and operated. Consequently, we estimate that there are fewer than 1,458 small entity internal connections manufacturers that may be affected by the decisions in this Order.

30. There are no additional reporting or other new compliance requirements relating directly to the decisions in this Order. Additional reporting or compliance requirements relating to the implementation of the carryover of unused funds from the schools and libraries mechanism will be addressed at the time such implementation procedures are adopted.

31. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others: “(1) 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 and reporting requirements under the rule for such 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 such small entities.”

32. In each funding year of the schools and libraries mechanism, a portion of the $2.25 billion available under the program cap has gone unused, largely because some applicants do not fully use the funds committed to them in the same funding year. In this Order, we revise section 54.507(a) of the Commission's rules to provide that unused funds from the schools and libraries support mechanism may be applied to stabilize or reduce the amount of such contributions by carriers to the universal service fund for no more than the next three quarters, beginning with third quarter 2002. We believe that applying unused funds from the schools and libraries mechanism to stabilize or reduce contributions has the same impact on both small and large entities. In addition, we believe that the action that we take today will be beneficial for both large and small entities that contribute to the universal service fund by stabilizing or reducing contribution requirements. Furthermore, we believe that the carryover of unused funds from the schools and libraries mechanism will be beneficial to both small and large entities by providing additional funds that may be committed to schools and libraries pursuant to the schools and libraries support mechanism. There are no reporting or other compliance requirements resulting from our action, and no possible exemptions that might assist small entities.

33. Report to Congress: The Commission will send a copy of the First Report and Order, including this 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 First Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the First Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

34. Pursuant to the authority contained in sections 1-4, 254, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 254, 303(r), this First Report and Order in CC Docket No. 02-6 is adopted.

35. Pursuant to section 553(d) of Administrative Procedure Act, 5 U.S.C. 553(d), that this order is effective June 20, 2002.

36. 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 Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.