This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

The Agency certifies that this rule will not have a significant economic effect on a substantial number of small entities, because it does not require actions on the part of the borrower or the lenders. The Agency, therefore, is not required to perform a Regulatory Flexibility Analysis as required by the Regulatory Flexibility Act, Public Law 96-534, as amended (5 U.S.C. 601). This rule does not impact small entities to a greater extent than large entities.

It is the determination of FSA that this action is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969, Pub. L. 91-190, and 7 CFR part 1940, subpart G, an Environmental Impact Statement is not required.

This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with that Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except that Agency servicing under this rule will apply to loans guaranteed prior to the effective date of the rule and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before requesting judicial review.

For reasons contained in the Notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with state and local officials.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit assessment, for proposed and final rules with “Federal mandates” that may result in expenditures of $100 million or more in any 1 year for state, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined by title II of the UMRA, for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The policies contained in this rule do not have any 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

The amendments to 7 CFR part 762 contained in this rule require no revisions to the information collection requirements that were previously approved by OMB under control number 0560-0155.

These changes affect the following FSA programs as listed in the Catalog of Federal Domestic Assistance:

This rule clarifies the policy of the Farm Service Agency Farm Loan Programs concerning the statutory mandate imposed on the Agency by the Debt Collection Improvement Act of 1996 (31 U.S.C. 3716) (DCIA). Section 3701 of 31 U.S.C. defines “claim” or “debt” in part to include funds owed on account of loans guaranteed by the government. This rule puts guaranteed borrowers on notice that FSA will attempt to collect from guaranteed borrowers through Treasury Offset and any other available remedies when a final loss claim is paid to a guaranteed lender.

The Federal Claims Collection Act of 1966 (Act), (31 U.S.C. 3711 et seq.) provides for the use of administrative, salary, and Internal Revenue Service (IRS) offsets by Government agencies to collect delinquent Federal debts. Any money that is or may become payable from the United States to an individual or entity indebted to FSA may be offset for the collection of a debt owed to FSA. In addition, money may be collected from the debtor's retirement payments for delinquent amounts owed to the Agency if the debtor is an employee or retiree of a Federal agency, the U.S. Postal Service, the Postal Rate Commission, or a member of the U.S. Armed Forces or the Reserve. Current regulations published in 7 CFR part 762, do not discuss whether amounts paid by the Agency on guaranteed final loss claims are considered Federal debts.

This rule is consistent with the Act and clarifies that a Federal debt is established when a guaranteed final loss claim is paid. The Agency will offset all payments available in accordance with 31 U.S.C. 3716 and 7 CFR part 1951, subpart C. Federal Crop Insurance indemnity payments are prohibited from offset under section 509 of the Federal Crop Insurance Act (7 U.S.C. 1509). FSA also will not offset environmental cost-share assistance payments for establishment costs that are made for newly enrolled FSA Conservation Reserve Program acres or in other situations not in the best interests of the Government. FSA's current policy for direct loan debt collections will be used for collection of Federal debt arising from guaranteed loans.

Some borrowers have established corporations, partnerships and other entities to avoid offsets and to circumvent other Agency regulations. Offset will be taken against the borrower's pro rata share of entity payments pursuant to 7 CFR 792.7(l), 1403.7(q), and 1951.106. A Federal debt cannot be established on debts discharged in bankruptcy. In a reorganization bankruptcy, a borrower will not be offset even when a final loss claim is paid provided the borrower successfully completes the confirmed plan. If a borrower's debt is discharged in a Chapter 7 bankruptcy, offset will not be pursued when the final loss claim is paid.

The Agency has revised its guaranteed loan application forms to include the applicant's certification and acknowledgment that any amounts paid by FSA on account of liabilities of the guaranteed loan borrower will constitute a Federal debt to FSA. The forms provide direct notice to interested applicants of FSA's debt collection policy and memorialize their understanding and acknowledgment of FSA's collection policy.

The guaranteed farm loan program has been in existence since 1973. Currently, there are 40,559 guaranteed farm loan borrowers with 67,540 loans. Approximately 1,200 loss claims are paid on guaranteed loans per year. Approximately 100 of the 1,200 loans are discharged in bankruptcy, leaving about 1,100 loans that could be considered for offset and other collection methods. Sixty days after a final loss claim is paid, Agency loan officials will notify the guaranteed borrowers with a Notice of Intent to Collect by Administrative Offset that any FSA payment that they may be scheduled to receive will be offset. The notice will advise such borrowers of their options to either pay the claim off, relinquish some or all of the payment to FSA, or seek administrative review or appeal.

This rule is not published for notice and comment because it implements statutory and regulatory provisions which are binding on the Agency. Since the Agency does not have discretion in this matter, public comment would not be able to affect the provisions of the rule. Therefore the rule is published as final and effective upon publication.

The regulations in 9 CFR parts 93, 94, 95, and 96 (referred to below as the regulations) govern the importation of certain animals, birds, poultry, meat, other animal products and byproducts, hay, and straw into the United States in order to prevent the introduction of various animal diseases, including bovine spongiform encephalopathy (BSE).

BSE is a neurological disease of cattle and is not known to exist in the United States. It appears that BSE is primarily spread through the use of ruminant feed containing protein and other products from ruminants infected with BSE. Therefore, BSE could become established in the United States if materials carrying the BSE agent, such as certain meat, animal products, and animal byproducts from ruminants, were to be imported into the United States and fed to ruminants in the United States. BSE could also become established in the United States if ruminants with BSE were imported into the United States.

Sections 94.18, 95.4, and 96.2 of the regulations prohibit or restrict the importation of certain meat and other animal products and byproducts from ruminants that have been in regions in which BSE exists or in which there is an undue risk of introducing BSE into the United States.

Paragraph (a)(1) of § 94.18 lists the regions in which BSE exists. Paragraph (a)(2) lists the regions that present an undue risk of introducing BSE into the United States because their import requirements are less restrictive than those that would be acceptable for import into the United States and/or because the regions have inadequate surveillance. Paragraph (b) of § 94.18 prohibits the importation of fresh, frozen, and chilled meat, meat products, and most other edible products of ruminants that have been in any region listed in paragraph (a)(1) or (a)(2). Paragraph (c) of § 94.18 restricts the importation of gelatin derived from ruminants that have been in any of these regions. Section 95.4 prohibits or restricts the importation of certain byproducts from ruminants that have been in any of those regions, and § 96.2 prohibits the importation of casings, except stomach casings, from ruminants that have been in any of these regions. Additionally, the regulations in 9 CFR part 93 pertaining to the importation of live animals provide that the Animal and Plant Health Inspection Service may deny the importation of ruminants from regions where a communicable disease such as BSE exists and from regions that present risks of introducing communicable diseases into the United States ( see § 93.404(a)(3)).

Poland has been among the regions listed in § 94.18(a)(2), which are regions that present an undue risk of introducing BSE into the United States. However, on May 5, 2002, a case of BSE was confirmed in a native-born animal in Poland. Therefore, in order to update the disease status of Poland regarding BSE, we are amending the regulations by removing Poland from the list in § 94.18(a)(2) of regions that present an undue risk of introducing BSE into the United States and adding Poland to the list in § 94.18(a)(1) of regions where BSE is known to exist. The effect of this action is a continued restriction on the importation of ruminants, meat, meat products, and certain other products and byproducts of ruminants that have been in Poland. We are making these amendments effective retroactively to May 5, 2002, which is the date that BSE was confirmed in a native-born animal in Poland.

This rulemaking is necessary on an emergency basis to update the disease status of Poland regarding BSE. 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.

We are amending the regulations by adding Poland to the list of regions where BSE exists because the disease has been detected in a native-born animal in that region. Poland has been listed among the regions that present an undue risk of introducing BSE into the United States.

Regardless of which of the two lists a region is on, the same restrictions apply to the importation of ruminants and meat, meat products, and most other products and byproducts of ruminants that have been in the region. Therefore, this action, which is necessary in order to update the disease status of Poland regarding BSE, will not result in any change in the restrictions that apply to the importation of ruminants and meat, meat products, and certain other products and byproducts of ruminants that have been in Poland.

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

This 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 retroactive effect to May 5, 2002; 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. ).

On November 14, 1996, Airbus Industrie applied for an amendment to U.S. type certificate (TC) A43NM to include the new Models A340-500 and -600. These models are derivatives of the A340-300 airplane that is approved under the same TC.

The Model A340-500 fuselage is a 6-frame stretch of the Model A340-300 and is powered by 4 Rolls Royce Trent 553 engines; each rated at 53,000 pounds of thrust. The airplane has interior seating arrangements for up to 375 passengers, with a maximum takeoff weight (MTOW) of 820,000 pounds. The Model A340-500 is intended for long-range operations and has additional fuel capacity over that of the Model A340-600.

The Model A340-600 fuselage is a 20-frame stretch of the Model A340-300 and is powered by 4 Rolls Royce Trent 556 engines; each rated at 56,000 pounds of thrust. The airplane has interior seating arrangements for up to 440 passengers, with a MTOW of 804,500 pounds.

Under the provisions of 14 CFR 21.101, Airbus must show that the Model A340-500 and -600 airplanes meet the applicable provisions of the regulations incorporated by reference in TC A43NM or the applicable regulations in effect on the date of application for the change to the type certificate. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in TC A43NM are 14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-63, and Amendments 25-64, 25-65, 25-66, and 25-77, with certain exceptions that are not relevant to these special conditions.

In addition, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change. The FAA has determined that the Model A340-500 and -600 airplanes must be shown to comply with Amendments 25-1 through 25-91, and with certain FAA-allowed reversions for specific part 25 regulations to the part 25 amendment levels of the original type certification basis.

Airbus has also chosen to comply with part 25 as amended by Amendments 25-92, -93, -94, -95, -97, -98, and -104. In addition, Airbus has elected to redefine the reference stall speed as the 1-g stall speed as proposed in Notice No. 95-17 (61 FR 1260, January 18, 1996).

If the Administrator finds that the applicable airworthiness regulations ( i.e., part 25 as amended) do not contain adequate or appropriate safety standards for the Airbus Model A340-500 and “600 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A340-500 and -600 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, as amended on the date of type certification.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

The Airbus Model A340-500 and -600 airplanes will incorporate the following novel or unusual design features.

The Model A340-500 and -600 airplanes will have systems that affect the structural performance of the airplane, either directly or as a result of a failure or malfunction. These novel or unusual design features are systems that can serve to alleviate loads in the airframe and, when in a failure state, can create loads in the airframe. The current regulations do not adequately account for the effects of these systems and their failures on structural performance. These special conditions provide the criteria to be used in assessing the effects of these systems on structures.

The EFCS of the Model A340-500 and -600, as with its predecessors, will result in the airplanes having neutral static longitudinal stability. This condition, when combined with the automatic trim feature of the EFCS, could result in insufficient feedback cues to the pilot of speed excursions below normal operating speeds. The longitudinal flight control laws provide neutral static stability within the normal flight envelope; therefore, the novel or unusual design features for these new airplane model designs will make them unable to show compliance with the static longitudinal stability requirements of §§ 25.171, 25.173, and 25.175.

The unique features of the Model A340-500 and -600 airplanes could cause an unsafe condition if the airspeed becomes too slow near the ground and results in the airplane stalling. The flightcrew would be unaware of the flight condition and would not be able to intervene and recover before stall. The French Direction Generale De L'Aviation Civile (DGAC) took action for this condition by introducing a special condition for predecessor airplanes with the same design features that required adequate awareness of the flightcrew to unsafe low speed conditions; there was no corresponding special condition developed by the FAA. The French special conditions allowed for awareness to be provided by an appropriate warning in the cockpit to allow for recovery. This special condition provides for an appropriate warning in the cockpit of the A340-500 and -600 airplanes to allow for recovery.

Subsequent to certification of the predecessor Model A330 and A340 airplanes and in establishing the certification requirements for the A340-500 and -600, the French DGAC decided to combine two special conditions from the A330 into a new special condition titled “Static Longitudinal Stability and Low Energy Awareness.” Since the FAA did not take action on the introduction of the low energy awareness requirement during the A330 and A340 certification, this special condition for the Model A340-500 and -600 airplane certification harmonizes to the French DGAC special condition for static longitudinal stability and low energy awareness. The purpose of the new low energy awareness special condition item 2(a)(2) is to provide awareness to the pilot of a low speed (or low energy state) of flight when the flight control laws provide neutral static longitudinal stability significantly below the normal operating speeds, and offer no cues to the pilot through the side stick controller. The special condition item 2(a)(1) addresses the fact that the airplane has neutral stability and does not meet regulatory requirements for positive dynamic and static longitudinal stability (§§ 25.171, 25.173, and 25.175, and 25.181(a)).

The Model A340-500 and -600 airplanes will have a novel or unusual feature to accommodate the unique features of the high incidence protection and the alpha-floor systems. The high incidence protection system replaces the stall warning system during normal operating conditions by prohibiting the airplane from stalling. The high incidence protection system limits the angle of attack at which the airplane can be flown during normal low speed operation, impacts the longitudinal airplane handling characteristics, and can not be over-ridden by the crew. The existing regulations do not provide adequate criteria to address this system.

The function of the alpha-floor system is to automatically increase the thrust on the operating engines under unusual circumstances where the airplane pitches to a predetermined high angle of attack or bank angle. The regulations do not provide adequate criteria to address this system.

Notice of proposed special conditions No. 25-02-05-SC for the Airbus Model A340-500 and -600 airplanes was published in the Federal Register on April 8, 2002 (67 FR 16656). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model A340-500 and -600 airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Model A340-500 and -600 airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A340-500 and -600 series airplanes.

The following special conditions are in lieu of compliance with the criteria of previously issued Special Conditions No. 25-ANM-69 (Docket No. NM-75), item 4, “Interaction of Systems and Structure.”

(a) General. For airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of subparts C and D of part 25. The following criteria must be used for showing compliance with these special conditions for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, flutter control systems, and fuel management systems. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.

(1) The criteria defined herein only address the direct structural consequences of the system responses and performances and cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may in some instances duplicate standards already established for this evaluation. These criteria are only applicable to structures whose failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative modes are not provided in these special conditions.

(2) Depending upon the specific characteristics of the airplane, additional studies that go beyond the criteria provided in these special conditions may be required in order to demonstrate the capability of the airplane to meet other realistic conditions; such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.

(3) The following definitions are applicable to these special conditions.

Structural performance: Capability of the airplane to meet the structural requirements of part 25.

Flight limitations: Limitations that can be applied to the airplane flight conditions following an in-flight occurrence and that are included in the flight manual ( e.g. , speed limitations, avoidance of severe weather conditions, etc.).

Operational limitations: Limitations, including flight limitations that can be applied to the airplane operating conditions before dispatch (e.g., fuel, payload, and Master Minimum Equipment List limitations).

Probabilistic terms: The probabilistic terms (probable, improbable, extremely improbable) used in these special conditions are the same as those used in § 25.1309.

Failure condition: The term failure condition is the same as that used in § 25.1309; however, these special conditions apply only to system failure conditions that affect the structural performance of the airplane (e.g., system failure conditions that induce loads, lower flutter margins, or change the response of the airplane to inputs such as gusts or pilot actions).

(b) Effects of Systems on Structures. The following criteria will be used in determining the influence of a system and its failure conditions on the airplane structure.

(1) System fully operative. With the system fully operative, the following apply:

(i) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in subpart C, taking into account any special behavior of such a system or associated functions, or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.

(ii) The airplane must meet the strength requirements of part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.

(iii) The airplane must meet the aeroelastic stability requirements of § 25.629.

(2) System in the failure condition. For any system failure condition not shown to be extremely improbable, the following apply:

(i) At the time of occurrence. Starting from 1-g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after failure.

(A) For static strength substantiation, these loads multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure are ultimate loads to be considered for design. The factor of safety (FS) is defined in Figure 1.

(B) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in these special conditions item 1(b)(1)(ii).

(C) Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speed increases beyond Vc/Mc, freedom from aeroelastic instability must be shown to increased speeds, so that the margins intended by § 25.629(b)(2) are maintained.

(D) Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.

(ii) For the continuation of the flight. For the airplane in the system failed state and considering any appropriate reconfiguration and flight limitations, the following apply:

(A) The loads derived from the following conditions at speeds up to Vc, or the speed limitation prescribed for the remainder of the flight, must be determined:

( 1 ) The limit symmetrical maneuvering conditions specified in § 25.331 and in § 25.345.

( 2 ) The limit gust and turbulence conditions specified in § 25.341 and in § 25.345.

( 3 ) The limit rolling conditions specified in § 25.349 and the limit unsymmetrical conditions specified in § 25.367 and § 25.427(b) and (c).

( 4 ) The limit yaw maneuvering conditions specified in § 25.351.

( 5 ) The limit ground loading conditions specified in § 25.473 and § 25.491.

(B) For static strength substantiation, each part of the structure must be able to withstand the loads defined in special condition item 1(b)(2)(ii)(A), multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in Figure 2.

(C) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in special condition item 1(b)(2)(ii)(B).

(D) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance, then their effects must be taken into account.

(E) Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3. Flutter clearance speeds V I and V II may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).

(F) Freedom from aeroelastic instability must also be shown up to V I in Figure 3 above for any probable system failure condition combined with any damage required or selected for investigation by § 25.571(b).

(iii) Consideration of certain failure conditions may be required by other sections of part 25, regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10 −9 , criteria other than those specified in this paragraph may be used for structural substantiation to show continued safe flight and landing.

(3) Warning considerations. For system failure detection and warning, the following apply:

(i) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 25 or significantly reduce the reliability of the remaining system. The flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of warning systems, to achieve the objective of this requirement. These certification maintenance requirements must be limited to components that are not readily detectable by normal warning systems and where service history shows that inspections will provide an adequate level of safety.

(ii) The existence of any failure condition, not shown to be extremely improbable, during flight that could significantly affect the structural capability of the airplane, and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of subpart C below 1.25, or flutter margins below V II , must be signaled to the crew during flight.

(4) Dispatch with known failure conditions. If the airplane is to be dispatched in a known system failure condition that affects structural performance, or affects the reliability of the remaining system to maintain structural performance, then the provisions of these special conditions must be met for the dispatched condition and for subsequent failures. Flight limitations and expected operational limitations may be taken into account in establishing Qj as the combined probability of being in the dispatched failure condition and the subsequent failure condition for the safety margins in Figures 2 and 3. These limitations must be such that the probability of being in this combined failure state and then subsequently encountering limit load conditions is extremely improbable. No reduction in these safety margins is allowed if the subsequent system failure rate is greater than 10 −3 per hour.

(a) The following special conditions are in lieu of compliance with the requirements of 14 CFR 25.171, 25.173, 25.175, and 25.181(a), and in lieu of compliance with the previously issued Special Conditions No. 25-ANM-69 (Docket No. NM-75), item 11(b) “Flight Characteristics—Longitudinal Stability.”

(1) The airplane must be shown to have suitable dynamic and static longitudinal stability in any condition normally encountered in service, including the effects of atmospheric disturbance.

(2) The airplane must provide adequate awareness to the pilot of a low energy state when flight control laws provide neutral longitudinal stability significantly below the normal operating speeds.

(a) The following special conditions are in lieu of compliance with certain 14 CFR sections (listed below), and in lieu of compliance with previously issued Special Conditions No. 25-ANM-69 (Docket No. NM-75) item 12(b), “Flight Envelope Protection, Angle-of-Attack Limiting.”

(1) The following definitions are applicable to these special conditions.

High Incidence Protection System. A system that operates directly and automatically on the airplane's flying controls to limit the maximum incidence that can be attained to a value below that at which an aerodynamic stall would occur.

Alpha-floor System. A system that automatically increases thrust on the operating engines when incidence increases through a particular value.

Alpha-limit. The maximum steady incidence at which the airplane stabilizes with the High Incidence Protection System operating and the longitudinal control held on its aft stop.

V min. The minimum steady flight speed, for the airplane configuration under consideration and with the High Incidence Protection System operating, is the final stabilized Calibrated Airspeed obtained when the airplane is decelerated at an entry rate not exceeding 1 knot per second until the longitudinal pilot controller is on its stop.

V min 1g. V min corrected to 1g conditions. It is the minimum Calibrated Airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for V min .

(2) Capability and Reliability of the High Incidence Protection System: In lieu of compliance with the requirements of previously issued Special Conditions No. 25-ANM-69, this special condition requires that acceptable capability and reliability of the High Incidence Protection System must be established by flight test, simulation, and analysis as appropriate. The capability and reliability required are as follows:

(i) It shall not be possible during pilot induced maneuvers to encounter a stall and handling characteristics shall be acceptable, as required by special condition item 3(a)(5) of this special condition.

(ii) The airplane shall be protected against stalling due to the effects of windshears and gusts at low speeds as required by special condition item 3(a)(6) of this special condition.

(iii) The ability of the High Incidence Protection System to accommodate any reduction in stalling incidence resulting from residual ice must be verified.

(iv) The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309, and the associated policy.

(3) Minimum Steady Flight Speed and Reference Stall Speed. In lieu of compliance with the requirements of § 25.103 the following special conditions apply:

(i) V min . The minimum steady flight speed, for the airplane configuration under consideration and with the High Incidence Protection System operating, is the final stabilized Calibrated Airspeed obtained when the airplane is decelerated at an entry rate not exceeding 1 knot per second until the longitudinal control is on its stop.

(ii) The Minimum Steady Flight Speed, V min , must be determined with:

(A) The High Incidence Protection System operating normally.

(B) Idle thrust and Alpha-floor System inhibited.

(C) All combinations of flap settings and landing gear positions.

(D) The weight used when V SR is being used as a factor to determine compliance with a required performance standard.

(E) The most unfavorable center of gravity allowable, and

(F) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(iii) V min 1g. V min corrected to 1g conditions. It is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for V min . V min 1g is defined as follows:

(iv) The Reference Stall Speed, V SR , is a calibrated airspeed defined by the applicant. V SR may not be less than a 1-g stall speed. V SR is expressed as:

(v) V SR must be determined with the following conditions:

(A) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed.

(B) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V SR is being used.

(C) The weight used when V SR is being used as a factor to determine compliance with a required performance standard.

(D) The Center of gravity position that results in the highest value of reference stall speed.

(E) The airplane trimmed for straight flight at a speed achievable by the automatic trim system, but not less than 1.13 V SR and not greater than 1.3 V SR .

(F) The Alpha-floor system inhibited.

(G) The High Incidence Protection System adjusted to a high enough incidence to allow full development of the 1g stall.

(H) Starting from the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed one knot per second.

(vi) The flight characteristics at the AOA for V CL MAX must be suitable in the traditional sense at FWD and AFT CG in straight and turning flight at IDLE power. Although for a normal production EFCS and steady full aft stick this AOA for V CL MAX cannot be achieved, the AOA can be obtained momentarily under dynamic circumstances and deliberately in a steady state sense with some EFCS failure conditions.

(4) Stall Warning

(i) Normal Operation. If the conditions of special conditions item 3(a)(2) are satisfied, equivalent safety to the intent of § 25.207, Stall Warning, shall be considered to have been met without provision of an additional, unique warning device.

(ii) Failure Cases. Following failures of the High Incidence Protection System, not shown to be extremely improbable, such that the capability of the system no longer satisfies special conditions item 3(a)(2)(i), (ii), and (iii), stall warning must be provided in accordance with §§ 25.207(a), (b) and (f).

(5) Handling Characteristics at High Incidence

(i) High Incidence Handling Demonstrations. In lieu of compliance with the requirements of § 25.201 the following apply:

(A) Maneuvers to the limit of the longitudinal control, in the nose up direction, must be demonstrated in straight flight and in 30 degree banked turns with:

( 1 ) The high incidence protection system operating normally.

( 2 ) Initial power condition of:

( i ) Power off

( ii ) The power necessary to maintain level flight at 1.5 V SR1 , where V SR1 is the stall speed with the flaps in the approach position, the landing gear retracted, and the maximum landing weight. The flap position to be used to determine this power setting is that position in which the stall speed, V SR1 , does not exceed 110 percent of the stall speed, V SR0 , with the flaps in the most extended landing position.

( 3 ) Alpha-floor system operating normally unless more severe conditions are achieved with alpha-floor inhibited.

( 4 ) Flaps, landing gear and deceleration devices in any likely combination of positions.

( 5 ) Representative weights within the range for which certification is requested, and

( 6 ) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(B) The following procedures must be used to show compliance with the requirements of special condition item 3(a)(5)(ii).

( 1 ) Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed one knot per second until the control reaches the stop.

( 2 ) The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition and must then be recovered by normal recovery techniques.

( 3 ) The requirements for turning flight maneuver demonstrations must also be met with accelerated rates of entry to the incidence limit, up to the maximum rate achievable.

(ii) Characteristics in High Incidence Maneuvers. In lieu of compliance with the requirements of § 25.203, the following apply:

(A) Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30 degree banked turns, the airplane's characteristics shall be as follows:

( 1 ) There shall not be any abnormal airplane nose-up pitching.

( 2 ) There shall not be any uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at alpha limit as the longitudinal control reaches the stop would be acceptable. Any reduction of pitch attitude associated with stabilizing the incidence at the alpha limit should be achieved smoothly and at a low pitch rate, such that it is not likely to be mistaken for natural stall identification.

( 3 ) There shall not be any uncommanded lateral or directional motion, and the pilot must retain good lateral and directional control, by conventional use of the cockpit controllers, throughout the maneuver.

( 4 ) The airplane must not exhibit severe buffeting of a magnitude and severity that would act as a deterrent to completing the maneuver.

(B) In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha-limit. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal controller on the stop for a period of time appropriate to the maneuvers.

(C) It must always be possible to reduce incidence by conventional use of the controller.

(D) The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds such as V 2 and V ref up to Alpha-limit shall not be unduly damped or significantly slower than can be achieved on conventionally controlled transport airplanes.

(6) Atmospheric Disturbances.

Operation of the High Incidence Protection System and the Alpha-floor System must not adversely affect aircraft control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of windshear. Simulator tests and analysis may be used to evaluate such conditions, but must be validated by limited flight testing to confirm handling qualities at critical loading conditions.

(7) Alpha Floor.

The Alpha-floor setting must be such that the aircraft can be flown at normal landing operational speed and maneuvered up to bank angles consistent with the flight phase (including the maneuver capabilities specified in § 25.143(g)) of the 1-g stall Equivalent Safety Finding without triggering Alpha-floor. In addition, there must be no Alpha-floor triggering unless appropriate when the airplane is flown in usual operational maneuvers and in turbulence.

(8) In lieu of compliance with the requirements of § 25.145, the following apply:

(i) It must be possible, at any point between the trim speed prescribed in special condition item 3(a)(ii)(F), and V min , to pitch the nose downward so that the acceleration to this selected trim speed is prompt with:

(ii) The airplane trimmed at the trim speed prescribed in special condition item 3(a)(ii)(F);

(A) The landing gear extended;

(B) The wing flaps retracted and extended; and

(C) Power off and at maximum continuous power on the engines.

(9) In lieu of compliance with the requirements of § 25.145(b)(6), the following apply:

With power off, flaps extended and the airplane trimmed at 1.3 V SR1 , obtain and maintain airspeeds between V min and either 1.6V SR1 or V FE , whichever is lower.

(10) In lieu of compliance with the requirements of § 25.1323(c), the following apply:

(i) V MO to V min with the flaps retracted; and

(ii) V min to V FE with flaps in the landing position.

Recently, the wing of an Air Tractor Model AT-400A separated from the airplane during flight. Investigation reveals that the right-hand lower spar cap failed due to fatigue at the 3/8 -inch outboard bolt, which is located 6.5 inches outboard of the fuselage centerline.

The following airplanes have a similar type design to that of the accident airplane:

In addition, some airplanes have had Snow Engineering Co. Service Letter #55 incorporated. When incorporated, the affected area would be (1) the left and right side second outermost 7/16 -inch boltholes, which are located 5.38 inches from centerline; and (2) the left and right side outermost 3/8 -inch boltholes, which are located 6.5 inches outboard from centerline.

If not detected and corrected in a timely manner, cracks in the wing centerline splice joint could eventually result in the wing separating from the airplane during flight.

Air Tractor has issued the following:

The FAA has reviewed all available information and determined that:

This AD requires you to inspect (one-time) the wing centerline splice joint for cracks and, if any crack is found, replace the affected wing spar lower cap. This AD also requires you to report the results of the inspection to FAA and replace the wing spar lower caps after a certain amount of usage.

You must accomplish these actions in accordance with the previously-referenced service information.

We will evaluate the information received from the reporting requirement of this AD to determine whether additional rulemaking action should be taken. This could include repetitive inspections, parts replacement, modifications, or no further action.

In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We have included, in the rulemaking docket, a discussion of information that may have influenced this action.

Because the unsafe condition described in this document could result in the wing separating from the airplane during flight, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites your comments on the rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date specified above. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-22-AD.” We will date stamp and mail the postcard back to you.

These regulations 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, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

We have determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a significant regulatory action under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket (otherwise, an evaluation is not required). A copy of it, if filed, may be obtained from the Rules Docket.

Transport Canada, which is the airworthiness authority for Canada, notified FAA that an unsafe condition may exist on certain de Havilland Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. Transport Canada reports incidents of corrosion found in the area of the elevator tip rib underneath the mass balance weights on several of the above-referenced airplanes.

These conditions, if not detected and corrected, could result in loss of balance weight during flight and the elevator control surface separating from the airplane.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain de Havilland Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on March 4, 2002 (67 FR 9627). The NPRM proposed to require you to modify the elevator tip rib on each elevator; repetitively inspect underneath the mass balance weights at the elevator rib tip for corrosion; and either remove the corrosion or replace the corroded elevator tip rib depending on the corrosion damage.

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

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 160 airplanes in the U.S. registry.

We estimate the following costs to accomplish the modification and initial inspection:

These figures only take into account the modification and initial inspection costs and do not take into account the costs of any of the repetitive inspections or the cost to replace any elevator tip rib that would be found corroded past a certain extent. We have no way of determining the number of repetitive inspections each owner/operator will incur over the life of each affected airplane or the number of elevator tip ribs that will need to be replaced.

The compliance time of this AD is “within the next 6 calendar months after the effective date of this AD.”

We have determined that a calendar time compliance is the most desirable method because the unsafe condition described in this AD is caused by corrosion. Corrosion develops regardless of whether the airplane is in service and is not a result of airplane operation. Therefore, to ensure that the above-referenced condition is detected and corrected on all airplanes within a reasonable period of time without inadvertently grounding any airplanes, a compliance schedule based upon calendar time instead of hours TIS is required.

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 copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

A ground test for proper inertial reference unit (IRU) function revealed a wiring defect that is attributed to a manufacturing error on certain Honeywell, Inc. part number (P/N) HG1075AB05 and HG1075GB05 IRUs. This wiring defect disables the IRU's capability to detect a loss of primary input power and transition to backup battery input power in some installations.

The affected IRU's incorporate the following:

This condition, if not corrected, could result in loss of attitude, heading, and position reference and lead to the pilot making flight decisions that put the aircraft in unsafe flight conditions.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Honeywell, Inc. part number (P/N) HG1075AB05 and HG1075GB05 inertial reference units (IRU) that are installed on aircraft. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on January 28, 2002 (67 FR 3844 ). The NPRM proposed to require you to inspect any affected IRU for proper function and remove the IRU either immediately or at a certain time depending on the result of the inspection.

The FAA encouraged interested persons to participate in the making of this amendment. The following presents the comments received on the proposal and FAA's response to each comment:

One commenter requests FAA to focus on those aircraft where the affected IRUs would most likely be installed. The commenter acknowledges that this equipment could be installed on other aircraft through the technical standard order (TSO) or supplemental type certificate (STC), but points out that the IRUs are primarily used on Dassault Falcon Jets.

We concur that these IRUs are primarily used on Dassault Falcon Jets. We will add a note in the AD that states these IRUs are primarily used on early manufactured Dassault Falcon Jets, but could be incorporated on other aircraft through the TSO or an STC.

One commenter requests that FAA change the Applicability so aircraft incorporating the following are not affected by this AD:

The commenter points out that this change will make it clear that the AD does not apply to aircraft that already incorporate a modified IRU.

We concur that those airplanes with either of these configurations are not affected by the AD. The presumption in the AD is that if the units do not incorporate the affected modification status, then they have the corrected modification status. We concur that this can be confusing and we are rewriting the Applicability to clarify this.

One commenter requests that FAA add the toll free telephone number of Honeywell Commercial Aviation Products to aid in the customer obtaining service information.

We concur and will add this toll free number in the AD.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for the additions described above and minor editorial corrections. We have determined that these additions and minor corrections:

We estimate that this AD affects 80 airplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection and modification:

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 copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

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

This notice relates to fees for the Commission's review of the rule enforcement programs at the registered futures associations and contract markets regulated by the Commission.

Fees for the Commission's review of the rule enforcement programs at the registered futures associations and contract markets regulated by the Commission:

The Commission recalculates the fees charged each year with the intention of recovering the costs of operating this Commission program. 1 All costs are accounted for by the Commission's Management Accounting Structure Codes (MASC) system, which records each employee's time for each pay period. The fees are set each year based on direct program costs, plus an overhead factor.

The fees charged by the Commission to the SROs are designed to recover program costs, including direct labor costs and overhead. The overhead rate is calculated by dividing total Commission-wide direct program labor costs into the total amount of the Commission-wide overhead pool. For this purpose, direct program labor costs are the salary costs of personnel working in all Commission programs. Overhead costs consist generally of the following Commission-wide costs: indirect personnel costs (leave and benefits), rent, communications, contract services, utilities, equipment, and supplies. This formula has resulted in the following overhead rates for the most recent three years (rounded to the nearest whole percent): 105 percent for fiscal year 1999, and 105 percent for fiscal year 2000, and 117 percent for fiscal year 2001. These overhead rates are applied to the direct labor costs to calculate the costs of oversight of SRO rule enforcement programs.

Under the formula adopted in 1993 (58 FR 42643, Aug. 11, 1993) which appears at 17 CFR part 1 appendix B, the Commission calculates the fee to recover the costs of its review of rule enforcement programs, based on a three-year average of the actual cost of performing reviews at each SRO. The cost of operation of the Commission's program of SRO oversight varies from SRO to SRO, according to the size and complexity of each SRO's program. The three-year averaging is intended to smooth out year-to-year variations in cost. Timing of reviews may affect costs—a review may span two fiscal years and reviews are not conducted at each SRO each year. Adjustments to actual costs may be made to relieve the burden on an SRO with a disproportionately large share of program costs.

The Commission's formula provides for a reduction in the assessed fee if an SRO has a smaller percentage of United States industry contract volume than its percentage of overall Commission oversight program costs. This adjustment reduces the costs so that as a percentage of total Commission SRO oversight program costs, they are in line with the pro rata percentage for that SRO of United States industry-wide contract volume.

The calculation made is as follows: The fee required to be paid to the Commission by each contract market is equal to the lesser of actual costs based on the three-year historical average of costs for that contract market or one-half of average costs incurred by the Commission for each contract market for the most recent three years, plus a pro rata share (based on average trading volume for the most recent three years) of the aggregate of average annual costs of all contract markets for the most recent three years. The formula for calculating the second factor is: 0.5a + 0.5 vt = current fee. In this formula, “a” equals the average annual costs, “v” equals the percentage of total volume across exchanges over the last three years, and “t” equals the average annual cost for all exchanges. NFA, the only registered futures association regulated by the Commission, has no contracts traded; hence its fee is based simply on costs for the most recent three fiscal years.

This table summarizes the data used in the calculations and the resulting fee for each entity:

An example of how the fee is calculated for one exchange, the Minneapolis Grain Exchange, is set forth here:

a. Actual three-year average costs equal $12,645.

b. The alternative computation is:

c. The fee is the lesser of a or b; in this case $6,978.

As noted above, the alternative calculation based on contracts traded, is not applicable to the NFA because it is not a contract market and has no contracts traded. The Commission's average annual cost for conducting oversight review of the NFA rule enforcement program during fiscal years 1999 through 2001 was $206,046 (one-third of $618,139). The fee to be paid by the NFA for the current fiscal year is $206,046.

The Regulatory Flexibility Act, 5 USC 601, et seq ., requires agencies to consider the impact of rules on small business. The fees implemented in this release affect contract markets (also referred to as exchanges) and registered futures associations. The Commission has previously determined that contract markets and registered futures associations are not “small entities” for purposes of the Regulatory Flexibility Act. Accordingly, the Chairman on behalf of the Commission, certifies pursuant to 5 USC 605(b), that the fees implemented here will not have a significant economic impact on a substantial number of small entities.

In January, 2001 (66 FR 5916-6135), OSHA published revisions to its rule on recording and reporting occupational injuries and illnesses (29 CFR parts 1904 and 1952) to take effect on January 1, 2002. On July 3, 2001, the agency proposed to delay the effective date of §§ 1904.10 Recording criteria for cases involving occupational hearing loss, and 1904.12 Recording criteria for cases involving work-related musculoskeletal disorders, until January 1, 2003 (66 FR 35113-35115). In that notice, OSHA explained that the Agency was reconsidering the requirement in § 1904.10 to record all cases involving an occupational hearing loss averaging 10 decibels (dB) or more. OSHA found that there were reasons to question the appropriateness of 10 dB as the recording criterion, and asked for comment on other approaches and criteria, including recording losses averaging 15, 20 or 25 dB. OSHA also stated that it was reconsidering the requirement in § 1904.12 that employers check the MSD column on the OSHA Log for a case involving a “musculoskeletal disorder” as defined in that section.

OSHA received a total of 77 written comments on the July 3, 2001 proposal. After considering the views of interested parties, OSHA published a final rule on October 12, 2001 (66 FR 52031—52034) delaying the effective date of §§ 1904.10(a) and 1904.12(a) and (b) until January 1, 2003, adding a new paragraph (c) to § 1904.10 establishing a 25-dB recording criterion for hearing loss cases for calendar year 2002, and modifying the regulatory note to paragraph 1904.29(b)(7)(vi) to delay the language referring to privacy case consideration for MSD cases.

This final rule contains amended hearing loss recording criteria codified at 29 CFR 1904.10(a) and 1904.10(b)(1)-(7). In a separate Federal Register document published today, OSHA is proposing to delay the effective date of § 1904.10(b)(7), which requires employers to check the hearing loss column on the Log for hearing loss cases meeting the revised recording criteria, as well as the MSD provisions addressed in the October 12 final rule. Additional information about the proposal to delay the effective date of the hearing loss column is contained in the section of this rule titled Adding a column to the 300 Log, and in the separate Federal Register publication Proposed Delay of Effective Dates; Request for Comment, published today.

Section 1904.10 of the January 19, 2001 final recordkeeping rule required employers to record, by checking the “hearing loss” column on the OSHA 300 Log, all cases in which an employee's hearing test (audiogram) revealed that a Standard Threshold Shift (STS) in hearing acuity had occurred. An STS was defined as “a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels or more at 2000, 3000 and 4000 Hertz (Hz) in one or both ears.” The recordkeeping rule itself does not require the employer to test employee's hearing. However, OSHA's occupational noise standard (29 CFR 1910.95) requires employers in general industry to conduct periodic audiometric testing of employees when employees' noise exposures are equal to, or exceed, an 8-hour time-weighted average of 85dBA. Under the provisions of § 1910.95, if such testing reveals that an employee has sustained a hearing loss equal to an STS, the employer must take protective measures, including requiring the use of hearing protectors, to prevent further hearing loss. Employers in the construction, agriculture, oil and gas drilling and servicing, and shipbuilding industries are not covered by § 1910.95, and therefore are not required by OSHA to provide hearing tests. If employers in these industries voluntarily conduct hearing tests they are required to record hearing loss cases meeting the recording criteria set forth in the final Section 1904.10 rule.

The former recordkeeping rule, which remained in effect until January 1, 2001, contained no specific threshold for recording hearing loss cases. In 1991, OSHA issued an enforcement policy on the criteria for recording hearing loss cases, to remain in effect until new criteria were established by rulemaking. The 1991 policy stated that OSHA would cite employers for failing to record work related shifts in hearing of an average of 25 dB or more at 2000, 3000 and 4000 Hz in either ear. Subsequently, OSHA released interpretations stating that the employer could adjust the audiogram for aging using the tables in Appendix F of the Noise Standard, and that the employer was to use the employee's original baseline audiogram as the baseline reference audiogram for determining a recordable hearing loss.

One of the major issues in the recordkeeping rulemaking was to determine the level of occupational hearing loss that constitutes a health condition serious enough to warrant recording. This was necessary because the final rule no longer requires recording of minor or insignificant health conditions that do not result in one or more of the general recording criteria such as medical treatment, restricted work, or days away from work ( See, e.g., 66 FR 5931). In its 1996 Federal Register notice OSHA proposed a requirement to record hearing loss averaging 15 dB at 2000, 3000 and 4000 Hz in one or both ears (61 FR 4040). OSHA adopted the lower 10-dB threshold in the final rule based in part upon comments that “(a)n age-corrected STS is a large hearing change that can affect communicative competence” (66 FR 6008).

Most commenters opposed the adoption of the 10-dB threshold for recording hearing loss (Exs. 3-1, 3-13, 3-14, 3-19, 3-20, 3-22, 3-25, 3-26, 3-27, 3-29, 3-34, 3-35, 3-37, 3-43, 3-45, 3-48, 3-49, 3-50, 3-54, 3-57, 3-58, 3-59, 3-61, 3-62, 3-63, 4-3, 4-5, 5-5, 5-7). A number of these commenters challenged the significance of a 10-dB shift, stating that: 10-dB shifts are not significant—only significant health conditions should be captured (Exs. 3-14, 3-26, 3-48); the level selected must amount to a significant alteration in an employee's ability to hear (Exs. 3-50, 3-54, 3-59); a 10-dB shift from audiometric zero is a virtually imperceptible loss in hearing—10-dB shifts at higher levels become more important (Ex. 3-49); the medical community and workers' compensation do not recognize a 10 dB shift as a significant hearing loss (Exs. 3-19, 3-20, 3-25, 3-35, 3-43, 3-63); a 10-dB shift is not a material impairment, so it should not be a recordable illness (Exs. 3-25, 3-26, 3-34, 3-50, 3-54, 3-59, 3-58, 3-61); and, 10 dB is an early warning mechanism that is appropriate for the hearing standard but not for injury and illness recording—the 1904 provisions are intended to collect data on serious injuries and illnesses, not potential precursors (Exs. 3-25, 3-49, 3-50, 3-54, 3-59, 3-62). Organization Resources Counselors (ORC) remarked that:

A number of the commenters objected to recording 10-dB shifts because this recording level would result in the recording of too many “false positive” cases, either because of audiometric testing errors, because the hearing loss was temporary and not persistent, or because the case was insufficiently work-related (Exs. 3-14, 3-19, 3-20, 3-25, 3-26, 3-27, 3-29, 3-35, 3-37, 3-43, 3-45, 3-49, 3-50, 3-54, 3-56, 3-58, 3-59, 3-61, 3-62, 3-63, 4-5). The issues of audiometric error, persistence, and work-relationship are discussed in more detail below. The commenters opposed to the 10-dB shift also remarked that using 10-dB shifts will lead to overrecording (Ex. 3-37), 10 dB will result in a 5 to 10 fold increase in hearing loss recording (Ex. 3-49), too many non-occupational (emphasis added) cases are captured by 10 dB (See, e.g., Ex. 4-5), changing to 10 dB would make the past data useless and make it difficult to establish trends (Ex. 3-19), and that if OSHA adopts 10 dB, the states may be influenced to change their workers' compensation standards, resulting in higher workers' compensation costs (Ex. 3-34).

Some of the commenters opposed to the recording of all 10-dB shifts recognized a critical difference between the 25-dB criteria contained in the American Medical Association [AMA] Guides to the Evaluation of Permanent Impairment and the 25-dB level OSHA has enforced since 1991 (Exs. 3-25, 3-49, 3-50, 3-54, 3-59, 3-62). The AMA Guides measure hearing loss from a baseline of audiometric zero, which represents the statistical average hearing threshold level of young adults with no history of aural pathology (ANSI S3.6-1969). The 1991 OSHA recording level used the individual employee's original baseline audiogram taken at the time the worker was first placed in a hearing conservation program. If an individual employee has experienced some hearing loss before being hired, a 25-dB shift from the original baseline will be a larger hearing loss than the hearing impairment recognized by the AMA as a disabling condition. In a single comment submitted by both organizations, the National Association of Manufacturers (NAM) and the Can Manufacturing Institute (CMI) stated that:

Industrial Health, Inc, a mobile hearing testing vendor, added that:

A number of commenters urged OSHA to adopt the 10-dB threshold for recording occupational hearing loss, consistent with the January 19, 2001 Federal Register notice (Exs. 3-3, 3-4, 3-10, 3-11, 3-15, 3-17, 3-18, 3-21, 3-23-1, 3-24, 3-30, 3-36, 3-40, 3-47, 3-52, 3-53, 4-2, 5-2, 5-3, 5-6). Many of these commenters argued that an age-corrected 10-dB shift is a large change in hearing that can affect communication ability (Exs. 3-3, 3-21, 3-23-1, 3-53), that a persistent 10-dB shift represents a permanent and irreversible loss of hearing acuity (Ex. 3-21), that a 10-dB shift is a material impairment (Exs. 3-17, 3-23-1, 3-53), and that real and debilitating hearing loss may not be detected if a higher threshold is selected (Ex. 3-3). The remarks of the Coalition to Protect Workers Hearing are representative:

Commenters also stated that use of a 10-db shift reduces recordkeeping and data management burdens for industry (Exs. 3-3, 3-10, 3-23-1, 3-47, 3-53, 5-2), reduces confusion for industrial managers and occupational hearing conservation technicians—“[a] problem that occurred with OSHA's 1991 policy” (Ex. 3-23-1), that current STS rates are not sufficiently high to result in an undue or inappropriate number of recordable events (Ex. 3-3), that many of the states (Michigan, North Carolina, South Carolina, Puerto Rico and Tennessee) require the recording of 10-db shifts with little detrimental effect on industry (Exs. 3-3, 3-4, 3-24), that a 10-db shift is comparable to other permanent injuries that are recorded on the OSHA 300 Form, such as an amputated finger (Ex. 3-23-1) or medical removal under the lead standard (Ex. 3-47), and that the 10-db shift is better for mobile and transient employees because the original baseline may not follow employees when they change jobs (Ex. 3-23-1).

Several of the commenters argued that recording 10-db shifts would be more protective for workers (3-3, 3-10, 3-17, 3-18, 3-21, 3-23-1, 3-24, 3-30, 3-47, 3-53). In a representative comment, the AFL-CIO argued that: “[t]he requirement to record a 10-db hearing loss on the Log would aid in the early detection and prevention of occupational hearing loss.” It stated that “(r)ecording a 10-db STS on Form 300 is a practical and reasonable means to assist in the early detection of a loss in hearing so that workplace intervention measures can be implemented to protect workers from the hazards of noise. Having employers continue to record shifts in hearing of an average of 25 dB * * * is too high a threshold of loss in hearing acuity to be sufficiently proactive in preventing worker hearing loss” (Ex. 3-24).

Other commenters added that by recognizing disease earlier, employers may take preventive measures to avoid potential workers' compensation cases that are sometimes triggered at the 25-dB level (Ex. 3-10), that recording triggers action on the part of employers (Ex. 3-23-1), that 10-db shifts provide consistency for construction employers who are not required to test hearing (Ex. 3-10), and that the 10-db recording criterion is more protective and reasonable for employers who are not covered by the OSHA noise standard (Exs. 3-10, 3-17, 3-18, 3-24).

Most of the commenters who objected to the recording of 10-db shifts presented alternative recording thresholds. The American Chemistry Council recommended a 15-db shift (Ex. 5-5), the Rubber Manufacturers Association recommended a 20-dB shift (Ex. 3-27), and Abbott Laboratories recommended recording second and subsequent 10-db shifts (Ex. 3-13). By far, the most common alternative offered was a shift of 25 dB (Exs. 3-1, 3-14, 3-19, 3-20, 3-22, 3-26, 3-29, 3-34, 3-35, 3-37, 3-43, 3-45, 3-48, 3-50, 3-57, 3-58, 3-61, 3-63, 4-3, 4-5). The commenters supporting a 25-dB shift argued that 25 dB was superior because medical and health care professionals recommend using 25 dB (Exs. 3-29, 3-50, 3-54, 3-59), 25 dB is consistent with the American Medical Association (AMA) guidelines (Exs. 3-50, 3-54, 3-59), 25 dB is used for workers' compensation (Ex. 3-13), 25 dB is protective and provides an easily identifiable measurement for determining injuries (Ex. 3-35), and OSHA adopted 25 dB in 1991 because it is widely accepted as a meaningful loss of hearing and is well documented (Exs. 3-37, 3-50, 3-54, 3-59).

The National Association of Manufacturers (Ex. 3-50), the Can Manufacturing Institute (Ex. 3-50), and Industrial Health, Inc. (Ex. 3-62) recommended a system where 15-db shifts would be recorded, but only when the shift crossed the disability boundary of 25 dB from audiometric zero. These commenters argued that the 15-db difference eliminated most shifts caused by audiometric error, and that by requiring them to cross the 25-dB fence, they would also clearly involve a hearing disability.

Organization Resources Counselors (ORC) urged OSHA to adopt a “sliding scale” recording criteria whereby the employer would record the first STS that exceeds 25 dB over audiometric zero, and all subsequent STS cases (Ex. 3-49). ORC argued that “[t]here is no single objective level of hearing loss that is uniformly identifiable for every employee. Different employees enter the workplace with different levels of hearing capability, and noise affects people differently” and that this concept reflects the intent of the OSH Act and the new rule in capturing significant injuries and illnesses.

The American Iron and Steel Institute (Ex. 3-54), the Society for the Plastics Industry (Ex. 3-25) and the American Forest & Paper Association (Ex. 3-59) encouraged the adoption of a similar recording criteria where shifts would be averaged over the frequencies of 500, 1000, 2000, and 3000 Hz, and the first shift of 10 dB over the disability fence of 25 dB would be recorded. This approach also set forth thresholds for the recording of subsequent shifts when they crossed boundaries used by various organizations for delineating mild, moderate, and severe hearing disability at the 40, 55 and 70-dB levels from audiometric zero.

Following consideration of the comments received in response to the July 3, 2001 proposal to modify the hearing loss recording criteria, OSHA has decided to require employers to record audiometric results indicating a Standard Threshold Shift (STS) only when such STS cases also reflect a total hearing level of at least 25 dB from audiometric zero. The STS calculation uses audiometric results averaged over the frequencies 2000, 3000 and 4000 Hz, using the original baseline and annual audiograms required by the OSHA noise standard § 1910.95. The rule also allows the employer to adjust the employee's audiogram results used to determine an STS to subtract hearing loss caused by aging, allows the employer to retest the workers' hearing to make sure the hearing loss is persistent, and allows the employer to seek and follow the advice of a physician or licensed health care professional in determining whether or not the hearing loss was work-related.

The approach adopted in the final rule has several advantages. By using the STS definition from the OSHA noise standard § 1910.95, the § 1904.10 regulation uses a sensitive measure of hearing loss that has occurred while the employee is employed by his or her current employer. By requiring all STSs to exceed 25 dB from audiometric zero, the regulation assures that all recorded hearing losses are significant illnesses. OSHA received no comments suggesting that a shift of 25 dB from audiometric zero was anything less than a serious hearing loss case. While there is little consensus among the commenters concerning the appropriate level that should be used to record hearing loss cases, there is widespread agreement that a 25-dB shift from audiometric zero is a serious hearing loss.

The hearing loss recording level is also compatible with the final rule's definition of injury or illness, “an abnormal condition or disorder” (§ 1904.46). Various scales used to rate hearing loss consider hearing levels less than 25 dB to be within the “normal range” (American Medical Association Guidelines to the evaluation of Material Impairment, American Academy of Family Physicians, Audiology Awareness Campaign). The recording level is also compatible with the definition of material impairment used by OSHA and MSHA in the development of standards for occupational noise exposure (64 FR 49548, 48 FR 9738).

The hearing loss recording requirements in § 1904.10 differ from the requirements of the OSHA noise standard (§ 1910.95) because under the noise standard the employer is required to take certain actions (employee notification, providing hearing protectors or refitting of hearing protectors, etc.) for all 10-db standard threshold shifts while the part 1904 rule only requires the recording of STSs that also exceed the total 25-db level. OSHA believes that this is an appropriate policy, because 10-db shifts in hearing at higher levels (above 25 dB) are more significant. Several commenters agreed that some shifts are more significant than others. ORC stated that “(a) 10-db shift from audiometric zero is virtually imperceptible, while 10-db shifts at higher levels become more important” (Ex. 3-49). The American Federation of Government Employees (Ex. 3-17) argued that “(h)earing loss is not linear, but is exponential, and changes are incrementally more serious and irreversible” and the American Federation of State, County and Municipal Employees remarked that “(additional shifts are progressively more serious in nature” (Ex. 3-21)).

When audiometric testing is done, test tones are presented at various sound levels, usually increasing or decreasing in 5-dB steps. The employee is asked to respond whenever a tone is heard, with the goal being finding the lowest level at which the employee can consistently hear. The standard measurement for measuring hearing level is decibels, a logarithmic scale. For the first increase in hearing level from 0 to 10 dB, the sound intensity increases 10 fold. The next 10 dB is a 100-fold increase. By the time a person's hearing level changes from 0 to 30 dB hearing level, he or she needs 1,000 times more sound intensity to just barely hear.

Although the part 1904 recordkeeping regulation and the § 1910.95 noise standard treat the STS cases differently, this has no effect on the noise standard's requirements and does not have any effect on the requirement for employers to comply with § 1910.95. When employers detect work-related STS cases, they are required to take all of the follow-up actions required by the noise standard.

Additionally, the STS measure uses existing measurements and calculations employers are already using to comply with the OSHA noise standard, resulting in less paperwork burden for employers covered by both rules. Employers are required to take one additional step to determine if the STS has also resulted in a total hearing level of 25 dB or more, and if so, to record it. The position taken in § 1904.10 provides a reasonable compromise between the commenters' highly polarized views on the proper recording level. The final rule's hearing loss recording provisions provide a reasonable “middle ground” solution to reconcile the differences between a highly sensitive measure of hearing loss (all 10-db shifts) and increasingly insensitive measures (15, 20, or 25-db shifts).

The approach used in this final rule is a newly developed alternative that was not considered in the January 2001 rulemaking because none of the commenters to the 1996 proposed rule suggested it. The approach was first suggested by Organization Resources Counselors in an unsolicited post-promulgation submission following publication of the January 2001 rule (Ex. 1-6). OSHA then solicited comment on the approach in the July 3, 2001 Federal Register notice requesting comment on the hearing loss recording issue (66 FR 35113—35115).

OSHA believes that the § 1904.10 requirements will improve the nation's statistics on occupational hearing loss and that more hearing loss cases will be entered on employers' OSHA 300 Logs. However, OSHA recognizes that the new requirements may not result in comprehensive statistics for occupational hearing loss. Employees may experience significant hearing loss in industries where audiometric testing is not required (construction, agriculture, oil and gas drilling and servicing, and shipbuilding industries), and is not provided voluntarily by the employer, and thus never be entered into the records. Likewise, an employee may experience gradual hearing loss while employed by several employers, but never work for the same employer long enough to allow a recordable STS to be captured. As to the effect on trend analysis, caution must be used when comparing § 1904.10 hearing loss data that span the effective date of this rule. The new hearing loss recording rule will result in the recording of additional cases of hearing loss, not as a result of a change in the number of workers who experience hearing loss, but simply because of the recordkeeping change.

OSHA finds that recording only 25-dB shifts from the employee's baseline audiogram is not an appropriate policy. If an employee had significant hearing loss before being hired by the employer, additional hearing loss would not be recorded until well beyond the point of disability. This would not conform to the requirements of section 24 of the Act directing the Secretary to “[c]ompile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses * * *” (emphasis added) (29 U.S.C. 673). The recording of 25-dB shifts in hearing acuity, measured from the employee's original baseline audiogram would clearly understate the true incidence of work-related hearing loss. Likewise, if the part 1904 regulation were to require only the recording of 15 or 20-dB shifts, or categorically exclude the first STS case the rule would exclude many legitimate and serious hearing loss cases that should rightfully be entered into the records and the Nation's injury and illness statistics. This approach would be especially deficient at capturing hearing loss in those employees who change employers several times during their working lives.

The Coalition to Protect Workers Hearing (Ex. 3-23) and the AFL-CIO (Ex. 3-24) specifically opposed the approach used in the final rule, which is often referred to as a “sliding scale” approach because it treats some STS cases as being more serious than others (Exs. 3-23, 3-24). These Commenters argued that a sliding scale approach was rejected in 1981 because it was too complex (Exs. 3-23, 3-24), that sliding scales are difficult to administer and do not provide uniform protection for workers (Ex. 3-24), and that “(c)ategorizing employers on the basis of hearing impairment is discriminatory. * * * Women and African Americans, both of whom tend to have better hearing sensitivity, might be placed in noise-hazardous jobs since they could develop more hearing change without crossing the line” (Exs. 3-23-1, 3-53).

OSHA does not believe that these concerns are serious impediments to the Section 1904.10 requirements. The two-part test, an STS combined with a total hearing level in excess of 25 dB from audiometric zero, is not overly complex, and is not nearly as complex as some of the sliding scale approaches that were rejected during the revision of the OSHA noise standard in 1981. In the years since 1981, computer technology has become much more commonplace and is incorporated into most, if not all, audiometric equipment. OSHA expects that most employers and contractors who administer hearing tests under the provisions of the noise standard will use computer software to make the needed calculations, so the requirements will not be difficult to administer. OSHA has received no evidence to show that the policies in the final rule will encourage discriminatory behavior by employers. The suggestion that women or African Americans may be selected for noise exposed jobs in order to avoid a potential recordable hearing loss case is highly speculative. OSHA has seen no evidence that such discrimination has occurred either to avoid the requirements of the OSHA noise standard or to avoid workers' compensation issues.

OSHA does not agree with the commenters who argued that because the function of the OSHA standards and regulations, including the part 1904 regulation, is to protect workers, worker protection would be compromised by any policy other than the recording of all STS cases. OSHA encourages employers and employees to use the OSHA injury and illness records to improve workplace safety and health conditions, and this is one of the functions of the Part 1904 records. However, this is not the only function of the records. They are also used to generate injury and illness statistics for the Nation and for individual workplaces. They are used by OSHA representatives to identify hazards during workplace inspections, and are collected by OSHA to target its intervention efforts to more hazardous worksites (See 66 FR 5916-5917). As stated in the 2001 rulemaking, “[n]o new protections are being provided by the recordkeeping rule”. Further, the OSH Act does not require the recording of all injuries and illnesses and specifically excludes certain minor injury and illness cases. This exclusion, which is discussed in the preamble to the January 19, 2001 final rule, applies to both injuries and illnesses, including hearing loss (See 66 FR 5931-5932). It is thus entirely appropriate for the recordkeeping rule to exclude certain minor illness cases while capturing more serious cases.

The hearing loss recording requirements of Section 1904.10 will not deprive employers and employees of information about noise hazards or diminish workers' protection against the hazards of noise in the workplace. The occupational noise exposure standard requires that employees in general industry be tested for hearing loss when noise exposure exceeds an 8-hour time-weighted average of 85dB, and that employees be informed, in writing, if a 10-dB shift has occurred. The audiometric test records must be retained for the duration of the affected employee's employment. (See 29 CFR 1910.95(g), (m)). The noise standard also specifies the protective measures to be taken to prevent further hearing loss for employees who have experienced a 10-dB shift, including the use of hearing protectors and referral for audiological evaluation where appropriate. ( See 29 CFR 1910.95(g)(8)). These requirements, which apply without regard to the recording criteria in the recordkeeping rule, will protect workers against the hazards of noise. The modified requirements of Section 1904.10 will therefore not deprive employers and workers of the means to detect and prevent hearing loss.

Finally, section 4(b)(4) of the OSH Act provides that “[n]othing in this Act shall be construed to supercede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U.S.C. 653(b)(4). Accordingly, the OSHA recordkeeping rule will have no legal effect on state workers' compensation systems. There is no evidence that the states have modified their systems to conform to OSHA's previous hearing loss recording policies; in fact, the states are far from uniform in their treatment of occupational hearing loss (Ex. 3-24-14). Therefore, OSHA does not expect the 1904 regulation to have any effect on state workers' compensation in the future.

In its July 3, 2001 proposal, OSHA asked the public to comment on the variability of audiometric testing equipment and how testing variability should be taken into account, if at all, in the recordkeeping rule (66 FR 35115). Many commenters questioned the accuracy of audiograms, and some of them specifically questioned the accuracy of audiograms used to compute 10-dB shifts in hearing acuity (Exs. 3-5, 3-13, 3-14, 3-19, 3-20, 3-25, 3-26, 3-27, 3-29, 3-30, 3-35, 3-37, 3-45, 3-48, 3-49, 3-50, 3-54, 3-56, 3-58, 3-59, 3-63). These commenters argued that 10 dB is the lowest level of detection and is not reliable (Exs. 3-48, 3-63); at 10 dB the precision of the measurement becomes an issue (Ex. 3-49); 5 to 10-dB variability is common, which argues for 25 dB and against 10 dB (Ex. 3-29); 10 dB is not effective because of the testing environment, testing procedures, and error of audiometric equipment (Ex. 3-27); and that at a 10-dB shift, there is significant uncertainty in measurement, rendering a typical audiometric reading unreliable (Exs. 3-37, 3-56). Verizon Communications, Inc., while supporting the recording of 10-dB shifts, summarized the potential recording problem as follows:

The test-retest variability inherent in properly calibrated audiometric equipment is ± 5 dB. * * * if a 10-dB recording threshold is adopted, the following scenario is possible:

The International Paper Company stated that “[a]pplying the 10-dB STS criterion for recordkeeping purposes would have the effect of recording large numbers of workers whose hearing losses may simply be due to testing variability” (Ex. 3-14). The Society for the Plastics Industry (Ex. 3-25) cited a number of articles in the scientific literature to argue that measurement error in field testing as approximately ± 10 dB and the measurement error under laboratory conditions is ± 5 dB. The Specialty Steel Industry of North America (SSINA) and the Steel Manufacturers Association (SMA), in a combined comment, used information from the National Institute for Occupational Safety and Health (NIOSH) to argue that typical audiometric testing variability is 10 dB, stating that “(e)mployers will be required to record each occurrence of an STS at 10 dB, using a test that has a 10-dB measurement variability. This will generate an overwhelming number of false positives” (Ex. 3-37).

In a single comment, the National Chicken Council and the National Turkey Federation argued that “Lacking standardization in testing methods and in testing equipment, this change will mean that employers will likely be forced to record (or fail to record) STSs that are inaccurately measured” (Ex. 3-19). The Hearing Conservation Team at the Naval Submarine Medical Research Laboratory (Ex. 3-56) reviewed the scientific literature on audiogram reliability and found that methodology used by various researchers varied widely, making study comparisons difficult. The Hearing Conservation Team recommended further research into the test-retest reliability of various threshold levels that could then be used to set an STS criterion that would minimize false positives.

Another group of commenters argued that the accuracy of audiometric testing equipment is not a major factor (Exs. 3-15, 3-22. 3-23-1, 3-24, 3-57, 3-58, 3-61, 5-2, 5-3). In a representative comment, the AFL-CIO remarked that “The issue of audiometric test variability has been a settled matter since the hearing conservation amendment was promulgated nearly 20 years ago and is adequately addressed by the existing provisions contained in 1904.10” (Ex. 3-24). The American Textile Manufacturers Institute commented that: “Variability is a given in audiometric testing as it can never be an exact process as long as it relies on any given individual being tested to sense a signal and respond. However, variability can be minimized if there are tight quality controls on the test equipment, procedures, etc.” (Ex. 3-15).

The Coalition to Protect Workers Hearing disagreed with OSHA's suggestion that the 10-dB recordability criterion does not allow for audiometric variability, stating that “The evaluation of work-relatedness takes calibration shifts into account, and such audiometric variability occurs infrequently. When random measurement variability does occur, retesting reduces it”, adding that “It is true that audiometric data are vulnerable to calibration differences between different audiometers. Calibration discrepancies may occur if the employer changes service providers (e.g., mobile audiometric testing, testing in an off-site clinic) or if the employer switches audiometers for in-house testing. Such change can easily affect data by 5 dB. However, calibration discrepancies can be minimized through careful procedural controls such as the use of bio-acoustic simulators and proper professional supervision of the audiometric monitoring program” (Ex. 3-23-1).

The Dow Chemical Company, which has voluntarily been using 10-dB shifts for recording loss, stated that “In Dow's experience, following a standardized testing protocol (using 29 CFR 1910.95), and including adjustment for age and the use of a retest in 30 days, has provided accurate, consistent results' (Ex. 5-2). The National Institute for Occupational Safety and Health (NIOSH) argued that the variability of testing should not be taken into account in the recordkeeping rule because audiometric variability issues have been addressed in the OSHA Noise Standard 29 CFR 1910.95. NIOSH stated that they believe that under the OSHA Noise Standard the expected variability due to error will be ±5 dB (Ex. 5-3).

OSHA agrees with NIOSH that the recordkeeping rule should not take any actions to address the issues of audiometric variability, and finds that there is no need to increase the recording loss threshold to 15 or 20 dB to account for variability. The OSHA noise standard includes provisions that standardize audiometric testing protocols. The requirements in § 1910.95 (g) Audiometric Testing Program, § 1910.95 (h) Audiometric Test Requirements, Mandatory Appendix C to § 1910.95 Audiometric Measuring Instruments, Mandatory Appendix D to § 1910.95 Audiometric Test Rooms, and Mandatory Appendix E to § 1910.95 Acoustic Calibration of Audiometers, and the incorporated provisions of American Standard Specification for Audiometers S3.6-1969 provide standardized methodologies for conducting hearing tests designed to assure, as far as possible, that audiograms are accurate. As discussed in the preamble to the January 2001 final rule (66 FR 6009), following these requirements will result in audiometric test results with a variability of ±5 dB. As the Medical Educational Development Institute argued in response to the 1996 proposal, “(t)est/re-test reliability of 5 dB is well established in hearing testing. For example, the Council on Accrediting Occupational Hearing Conservationists maintain this range of reliability in their training guidelines and this is recognized in American National Standard Method for Manual Pure-Tone Threshold Audiometry, S3.21—1978 (R1992).” At the ± 5-dB reliability level, errors of 10 dB will be infrequent. There is a low probability that the audiometer will be incorrect by −5 dB on one test and +5 dB on a subsequent test because many of the variables affecting reliability will remain the same from year to year. The employer is likely to use the same audiometer, in the same room, operated by the same technician from one test to the next. When these variables are not held constant, or a 10-dB shift occurs due to residual random variability, the allowance for retesting should largely eliminate spurious shifts due to audiometric measurement errors. Additionally, the use of an average shift at three frequencies reduces the influence of random audiometric variability; this is one of the reasons that a frequency averaged shift was adopted in the § 1910.95 STS definition.

It should be noted that it is impossible to eliminate audiometric errors in their entirety. Any recording level, no matter how it is set, will be subject to some level of false positive and false negative errors. However, OSHA believes that the audiometric testing requirements of § 1910.95, if followed, will provide reasonably accurate audiometric data for the administration of the OSHA noise standard, and for the recording of occupational hearing loss. As the Dow Chemical Company (Ex. 5-2) commented: “(f)ollowing a standardized testing protocol (using 29 CFR 1910.95), and including adjustments for age and the use of a retest in 30 days, has provided accurate, consistent results.” OSHA believes that the provisions allowing the employer to age adjust audiograms, seek advice from a physician or other licensed health care professional for determining work-relationship, retest within 30 days, and remove cases later found not to be persistent provide reasonable checks against false positive results being recorded on the 300 Log.

The final rule carries forward the January 19, 2001 rule's conceptual framework allowing, but not requiring, the employer to age adjust an employee's annual audiogram when determining whether or not a 10-dB shift in hearing acuity has occurred. There were no comments objecting to the age-correction of audiometric results when evaluating Standard Threshold Shifts in hearing. However, the American Iron and Steel Institute (Ex. 3-54), the Society for the Plastics Industry (Ex. 3-25) and the American Forest & Paper Association (Ex. 3-59), in support of a recording criteria similar to that adopted in the final rule, recommended that, “[b]ecause of the recognized contribution of aging to hearing loss, all hearing loss determinations would be age-adjusted in accordance with Appendix F to 29 CFR 1910.95”.

While the final rule allows the employer to age-correct the STS portion of the recording criteria, there is no allowance for age correction for determining a 25-dB hearing level. The AMA Guides specifically state that total hearing loss should not be age adjusted, and there is no recognized consensus method for age adjusting a single audiogram. The method used in Appendix F of § 1910.95 is designed to age correct STS, not absolute hearing ability. The 25-dB criteria is used to assure the existence of a serious illness, and reflects the employee's overall health condition, regardless of causation. Age correcting the STS will provide adequate safeguards against recording age corrected hearing loss. Therefore, it would be inappropriate and unnecessary to age correct the 25-dB hearing level.

Although OSHA did not specifically ask for comment on the topic, several commenters raised the issue of how to verify that recorded hearing loss cases are persistent. The OSHA noise standard addresses the issue of temporary hearing losses by allowing the employer to retest the employee's hearing within 30 days (1910.95(g)(7)(ii)). The 2001 rule adopted the same 30 day retest option at § 1904.10(b)(4) by allowing the employer to delay recording if a retest was going to be performed in the next 30 days.

A number of commenters stated that OSHA should record only permanent shifts in hearing (Exs. 3-23-1, 3-25, 3-26, 3-37, 3-48, 3-50, 3-58, 3-61, 3-62). In a representative comment, Industrial Health Inc. remarked that “[n]o shift, regardless of the number of dB, should be recorded unless it is found to be persistent in a second audiogram taken at a later time, which we believe should be no less than 60 days and preferably 6 months or more after the initial audiogram which revealed the shift” (Ex. 3-62).

The National Association of Manufacturers and the Can Manufacturing Institute, in a combined comment, argued that 30 days does not allow enough time to resolve transient conditions such as colds or allergies, and the retest period should be extended to one year (Ex. 3-50). The Coalition to Protect Workers Hearing recommended that “(a)t the discretion of the reviewing professional, within 15 months of the initial identification of the STS, any STSs which are not confirmed by subsequent retesting or otherwise found not to be work related, may be lined out on Form 300. Documentation justifying line outs must be provided and should be retained with the employees' records'(Ex. 3-23).

OSHA agrees with these commenters that the goal of the rule is to record only persistent hearing loss cases, and to help accomplish that goal, the Agency has carried forward the 30 day retest provision. However, OSHA has decided not to allow a longer retesting period. A longer retesting period would increase the likelihood that the employer would lose track of the case and therefore inadvertently fail to record the case. These errors would have a detrimental effect on the accuracy of the records and run counter to OSHA's goal of improving the quality of the injury and illness data. The Agency also believes that using different time periods for retesting in the part 1904 and § 1910.95 rules would result in increased confusion for employers.

The Agency has also rejected the suggestion that all hearing loss cases must be confirmed prior to recording them. Waiting for one year or longer to record an occupational hearing loss would move the recording to a year in which the original hearing loss was not initially discovered, would be administratively more complex for employers, and would have a detrimental effect on the hearing loss data. Many legitimate hearing loss cases could go unrecorded simply because the employee did not receive a subsequent audiogram due to job changes or some other circumstance that might occur before the next annual audiogram required by the noise standard.

In order to make it clear to employers that they may remove any cases that are found to be temporary, the final rule has adopted the removal option recommended by the Coalition to Protect Workers Hearing, with three modifications. First, the final rule does not include the 15 month time limit. OSHA does not believe that a time limit is needed because any future audiogram that shows an improvement in hearing and refutes the recorded hearing loss would indicate a temporary hearing loss that should be removed from the records. Second, the regulatory text does not specify that the removal must be at the discretion of the reviewing professional. The OSHA noise standard, at § 1910.95(g)(3), requires that:

Because the noise standard already requires audiograms to be conducted by, or under the supervision of, a qualified professional, subsequent audiograms that may refute the persistence of a recorded hearing loss will be reviewed by the appropriate professional. The § 1904.10 simply cross-references the need for the audiograms to be obtained pursuant to the requirements of § 1910.95, so there is no need for the § 1904.10 rule to repeat the review requirement. Third, the rule does not require the employer to maintain documentation concerning the removal of cases. Section 1910.95(m)(2) of the noise standard requires the employer to keep records of all audiometric tests that are performed, and those records will be available, should they be needed for future reference. As a result, there is no need to add a duplicative paperwork burden in the § 1904.10 rule. Therefore, § 1904.10(b)(4) states that “If subsequent audiometric testing indicates that an STS is not persistent, you may erase or line-out the recorded entry”. OSHA has added this additional regulatory language to minimize the recording of temporary hearing loss cases while capturing complete data on the incidence of hearing loss disorders.

Some commenters urged OSHA to measure hearing loss at frequencies other than 2000, 3000 and 4000 Hz ( See, e.g., Exs. 3-25, 3-54, 3-57, 3-58, 3-59, 3-61). Alabama Power (Ex. 3-61) and the Southern Company (Ex. 3-58) recommended using 500, 1000, and 2000 because “these are the frequencies where most communication occurs”. Another group of commenters recommended the use of 500, 1000, 2000 and 3000 Hz because these are the frequencies specified by the American Medical Association and the American Academy of Otolaryngology-Head and Neck Surgery, Inc. (Exs. 3-25, 3-54, 3-57, 3-59).

OSHA has decided to continue to use the frequencies used in the § 1910.95 OSHA noise standard (2000, 3000, and 4000 Hz). While “most” communication occurs at lower frequencies, these are clearly audible frequencies where some speech occurs, and where hearing loss can have a significant impact on workers' lives outside of verbal communication. Using these frequencies reduces the burden on employers that would be created by requiring separate calculations of audiometric results, and, as Industrial Health, Inc. stated “(w)ith regard to the early effects of noise exposure, it seems reasonable to extend the definition across the standard shift frequencies 2000, 3000, and 4000 Hz” (Ex. 3-62).

In its July 3, 2001 Federal Register notice OSHA asked the public to comment on the appropriate benchmark against which to measure hearing loss, e.g., the employee's baseline audiogram, audiometric zero, or some other measure (66 FR 35115). One commenter, Eric Zaban with the State of Michigan, suggested using audiometric zero as the appropriate benchmark (Ex. 4-1). The vast majority of the commenters who addressed this issue supported using the employee's baseline audiogram (Exs. 3-15, 3-20, 3-21, 3-22, 3-23-1, 3-24, 3-25, 3-27, 3-29, 3-30, 3-37, 3-47, 3-49, 3-50, 3-53, 3-54, 3-57, 3-58, 3-59, 3-61, 3-62, 3-63, 4-2, 4-5, 5-2, 5-3, 5-5 ). Alabama Power remarked that:

The AFL-CIO agreed, stating that “Using the original baseline takes into account any hearing loss that a worker may have experienced while employed by a previous employer” and “Using the baseline ideogram (audiogram) will assist in preventing the recording of cases of non-occupational hearing loss' (Ex. 3-24).

The two-part test for recording that is being adopted in the final rule uses the baseline audiogram as the reference point for determining whether or not the employee has had a change in hearing while employed by his or her current employer, and then uses audiometric zero as the reference point for determining the overall hearing ability of the affected employee. OSHA agrees that the employee's baseline audiogram is a superior reference point for measuring a change of hearing, a Standard Threshold Shift. Using the baseline audiogram taken upon employment reduces the effect of any prior hearing loss the employee have experienced, whether it is non-occupational hearing loss or occupational hearing loss caused by previous employment. Therefore, the final rule uses the employee's original baseline audiogram as the reference for the STS component of an initial hearing loss cases, and uses the revised baseline audiogram from that initial case as the reference for future cases.

The 25-dB total hearing level component of an OSHA recordable hearing loss uses a reference of audiometric zero. This portion of the recording criteria is used to assure that the employee's total hearing level is beyond the normal range of hearing, so it does not exclude hearing loss due to non-work causes, prior employment, or any other cause. The measurement simply reflects the employee's current hearing ability as reflected in the most recent audiogram. This comparison to audiometric zero is a simple matter, because audiometers are designed to provide results that are referenced to audiometric zero. The hearing level at each frequency is oftentimes printed by the equipment, so there is rarely a need to perform manual calculations.

The final rule published on January 19, 2001 included a presumption of work-relatedness when employees are exposed to loud noise at work, relying on the OSHA noise standards criteria of an 8-hour 85 dBA exposure level, or a total noise dose of 50 percent. The preamble discussion of the work-relatedness presumption was that:

Several commenters discussed the difficulties of determining the work-relatedness of hearing losses, and many argued that the 8-hour 85 dBA presumption was invalid (Exs. 3-2, 3-3, 3-13, 3-20, 3-23-1, 3-25, 3-27, 3-29, 3-37, 3-43, 3-48, 3-50, 3-54, 3-63, 4-3). In a representative comment, the Coalition to Protect Workers Hearing (Ex. 3-23-1) remarked that:

Other commenters suggested that if an employer has an active and enforceable hearing conservation program in effect, then the recordkeeping rule should presume that a hearing loss case is non-work-related (Exs. 3-37, 3-50); that the rule needs to take non-work noise exposure into account (Exs. 3-29, 3-37, 3-50); and that the rule should only consider a hearing loss to be work-related if work contributed more than 50% (Ex. 3-63). Several commenters made the same argument as the Coalition to Protect Workers Hearing, arguing that each case should be evaluated on its merits (Exs. 3-29, 3-43, 3-50, 3-63). The American Foundry Society argued that “[w]ork-relatedness should be evaluated by a health care professional with experience in occupational health. Low level occupational noise exposure or documented regular use of hearing protection devices (HPDs) in noisy areas should mitigate against the presumption of work-relatedness' (Ex. 3-63).

OSHA agrees with these commenters that it is not appropriate to include a presumption of work-relatedness for hearing loss cases to employees who are working in noisy work environments. It is possible for a worker who is exposed at or above the 8-hour 85-dBA action levels of the noise standard to experience a non-work-related hearing loss, and it is also possible for a worker to experience a work-related hearing loss and not be exposed above those levels. Therefore, the final rule states that there are no special rules for determining work-relationship and restates the rule's overall approach to determining work-relatedness—that a case is work-related if one or more events or exposures in the work environment either caused or contributed to the hearing loss, or significantly aggravated a pre-existing hearing loss.

The final rule's approach to determining work-relatedness differs from the January 2001 rule for three reasons. First, although it is likely that occupational exposure to noise in excess of 85 dBA will be a causal factor in hearing loss in some cases, a presumption of work-relatedness is not justified in all cases. Further evaluation is needed to make this determination. Second, the policy in the final rule is consistent with the general principle in § 1904.5 that work-relatedness is to be determined on a case-by-case basis. Third, the approach used in the January 2001 rule is not supported by comments to the docket. None of the commenters supported the presumption, while many opposed it.

The final rule also continues the 2001 rule's policy allowing the employer to seek the guidance of a physician or other licensed health care professional when determining the work-relatedness of hearing loss cases. Paragraph (b)(6) of the rule states that if a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, the employer is not required to consider the case work-related, and therefore is not required to record it.

When evaluating the work relatedness of a given hearing loss case, the employer should take several factors into account. The Coalition to Protect Workers Hearing recommended that employers consider prior occupational and non-occupational noise exposure, evaluation of calibration records and the audiometric environment, investigation of related activities and personal medical conditions, and age correction before presuming that hearing loss is work related (Ex. 3-23-1). One important factor to consider is the effectiveness of the hearing protection program. When employees are exposed to high levels of noise in the workplace, and do not wear appropriate hearing protection devices, a case of hearing loss is more likely to be work-related. If an employee's hearing protection devices are not appropriate for the noise conditions, if they do not fit properly, or if they are not used properly and consistently, they may not provide enough protection to prevent workplace noise from contributing to a hearing loss case.

Section 1904.10(a) of the January 2001 rule required that employers check a hearing loss column on the Log when recording a hearing loss case. OSHA is issuing a separate Federal Register document proposing to delay the effective date of the hearing loss column requirement until January 1, 2004, and asking for comment on issues related to the hearing loss column. The 1996 proposed recordkeeping rule did not contain a hearing loss column requirement, and did not ask for comment on whether a column should be added. In the 2001 final rule, OSHA explained that it was adding a hearing loss column to the 300 Log so that BLS could produce more reliable statistics on occupational hearing loss cases (66 FR 6005). OSHA's July 3, 2001 Federal Register notice sought comment on alternative criteria for recording occupational hearing loss, but did not mention the hearing loss column as an issue.

OSHA does not believe that the existing record provides an adequate basis to determine the need for the hearing loss column. OSHA believes that interested parties should be allowed to comment on the issue. Accordingly, OSHA is publishing a separate Federal Register document today, proposing to delay the effective date of the hearing loss requirement until January 1, 2004 while the Agency reconsiders the column requirement in light of public comment. To facilitate public comment, OSHA has separated the requirement from § 1904.10(a) and placed it in a separate paragraph at § 1904.10(b)(7), which asks “How do I complete the 300 Log for a hearing loss case?” and answers “When you enter a recordable hearing loss case on the OSHA 300 Log, you must check the 300 Log column for hearing loss illnesses.” To further help assure that the public is informed about this additional rulemaking activity, OSHA is adding a regulatory note to § 1904.10(b)(7) explaining that OSHA is delaying the applicability of § 1904.10(b)(7) until further notice while the Agency reconsiders the hearing loss column.

OSHA received one miscellaneous comment that is worthy of discussion. The International Chemical Workers Union Council (Ex. 3-53) remarked that “[i]t is difficult for workers and their representatives to gain access to audiometric exams or summaries of those exams”. Several of OSHA's rules provide access rights to audiometric data. Section 1910.95(g)(8) of the noise standard requires employers to inform employees, in writing, that they have experienced a standard threshold shift. OSHA's rule for access to employee exposure and medical records (§ 1910.1020) requires employers to provide access to medical records, exposure records, and analyses of records to employee's and their designated representatives. Finally, the part 1904 regulation requires employers to provide employee access to the OSHA injury and illness data.

OSHA has determined that the total cost of this action is $1,049,650 per year and, thus, that it is not an economically significant regulatory action within the meaning of Executive Order 12866. The methodology that OSHA has used for computing costs for the new rule is presented in the next two sections.

Under the 2002 rule, employers were required to record all hearing loss cases that involved a work-related Standard Threshold Shift (STS) of an average of 25 dB or more at 2000, 3000 and 4000 hertz (Hz) in either ear, compared to the employee's original baseline audiogram. The new rule requires recording all hearing loss cases that involve a work-related STS of an average of 10 dB or more if the accumulated loss of hearing is at least 25 dB above audiometric zero. (The use of the tables in Appendix F of the Noise Standard to adjust for aging remains unchanged.)

OSHA estimates that approximately 40,000 hearing loss cases would have to be recorded under the 2002 rule, as opposed to approximately 145,000 hearing loss cases under the new rule. Thus, the new rule increases the number of recordable hearing loss cases by approximately 105,000. (In the Final Economic Analysis of the 2001 revisions to the rule, OSHA estimated that there would be 275,000 additional hearing loss cases (66 FR 6121), but the new rule has a narrower definition of hearing loss cases than the 2001 rule.)

To estimate the number of cases that would be recorded, OSHA used the same estimation methodology as in the January 19, 2001 final rule. First, OSHA estimated the number of employees that would receive audiometric tests. OSHA's noise standard § 1910.95 requires employers to provide baseline and annual audiograms (and take other actions) when employees are exposed to certain noise levels. OSHA believes that approximately 23% of workers in the manufacturing sector are covered by the OSHA noise standard. Therefore, the number of covered manufacturing workers is 4,255,000 (18,500,000 manufacturing workers × .23). OSHA estimates that an additional 10% of workers are covered in other general industry sectors (such as transportation and utilities) or receive audiograms in industries not required to perform audiometric testing under the OSHA noise standard (such as construction and agriculture). Therefore, the total number of covered workers is estimated to be approximately 4,680,500 (4,255,000 × 1.1).

OSHA then reviewed a National Institute for Occupational Safety and Health (NIOSH) database of audiograms to determine the proportion of audiograms meeting the recording criteria. 3.09% of audiograms met the final rule's criteria for recording hearing loss, and 0.83% met the 2002 recording criteria (25 dB). Applying this percentage to the number of employees receiving annual audiograms results in 144,627 (4,680,500 × 0.0309) estimated hearing loss cases under the final rule, and 38,848 (4,680,500 × .0083) estimated hearing loss cases recorded under the 2002 rule.

Therefore, OSHA estimates 105,779 (144,627 − 38,848) additional cases of occupational hearing loss will be captured by the final section 1904.10 regulation, and has rounded this figure to 105,000 for cost estimation purposes.

The additional hearing loss cases will require additional entries on the OSHA Form 300 Log and Summary of Occupational Injuries and Illnesses and the OSHA Form 301 Injury and Illness Incident Report. Access of employees and their representatives to the additional Form 301s will also involve costs.

OSHA estimates that employers will incur for each additional hearing loss case a cost of 15 minutes for the Log entry.

As explained in the 2001 Final Economic Analysis, based on data collected during approximately 400 recordkeeping audit inspections, OSHA estimates that 82 percent of incidents will be recorded on forms other than Form 301, such as workers' compensation forms. The remaining 18% of additional hearing loss cases will take 22 minutes for the filling out the Form 301.

Assuming that an individual with the skill level of a Personnel Training and Labor Relations Specialist will do the recordkeeping required by this rule, an hourly wage of $30.02 is used to compute cost. (The average hourly wage for a Personnel Training and Labor Relations Specialist as reported in the Bureau of Labor Statistics Occupational Employment Statistics Survey for Year 2000 was $21.71; benefits are computed at 38.3 percent of the hourly wage.)

Thus, employers will incur, for each additional hearing loss case, data entry costs of 15 minutes for the Log entry plus, for 18% of the cases, 22 minutes for the Form 301. The total annual cost is estimated to be $996,064 [= (105,000 Cases) × (15 Minutes/Case) × ($30.02/Hour) + (18,900 Cases) × (22 Minutes/Case) × ($30.02/Hour)].

As in the Year 2001 Final Economic Analysis, OSHA assumes that (a) at one-tenth of covered establishments, one employee would request access to his or her own Form 301 (10,500 instances), and (b) at one percent of covered establishments, a union representative would request access to all Form 301s at the establishment. Using the same estimation method as the 2001 Economic Analysis, OSHA estimates union representative access will result in an additional 10,500 forms being provided by employers. OSHA assumes that, for each of the 21,000 forms being provided (10,500 + 10,500), employers would require five minutes to pull, copy (at $0.05), and replace the relevant Form 301.

The estimated total cost of providing access to additional hearing loss records would thus be $47,110 [= (21,000 Forms) × (5 Minutes × ($30.02/Hour) + $.05/Copy)]. Thus, according to the above analysis, the total annual cost of this regulatory action is $1,049,650.

Hearing loss cases result in substantial disability and lead to safety accidents as well. OSHA believes that aligning the recording threshold for such cases with the STS criterion in the Agency's Noise Standard will simplify recording for many employers who are already familiar with this criterion and provide more opportunities for employers to intervene to prevent other hearing loss cases.

As explained in the 2001 Final Economic Analysis, possession of information about events and exposures will increase the ability of employers and employees to identify hazardous conditions and to take remedial action to prevent future illnesses. If this enhanced ability to identify (and thus address) hazards translates into a reduction even as small as 0.5 to 1 percent of the estimated number of additional recordable cases, it would mean the prevention of 525 to 1,050 illnesses per year [= (.005 to .01 × 105,000].

The revisions in the rule will also make the injury and illness records more useful to OSHA, as well as to employers and employees. Improvements in the records being kept by employers would enhance OSHA's capacity to focus compliance outreach efforts on the most significant hazards; identify types or patterns of illness whose investigation might lead to regulatory changes or other types of prevention efforts, such as enforcement strategies, information and training, or technology development; and set priorities among establishments for inspection purposes.

Employers and employees both stand to benefit from the more effective use of OSHA's resources. The enhanced ability of compliance officers to identify patterns of illness will enable OSHA to focus on more serious problems. Identification of such patterns will also increase the ability of employers to control these hazards and prevent other similar illnesses. To the extent that employers take advantage of this information, the burden of OSHA inspections should be reduced in the long run. Employees clearly also will benefit from these reductions in illnesses.

The 2001 revisions of the recordkeeping rule, which were much more extensive, did not have a significant impact on a substantial number of small entities (66 FR 6121). In the Final Economic Analysis for those revisions, OSHA estimated that over the entire range of SICs affected, the average cost per small firm was only $31.63. The impacts of those revisions on sales and profits did not exceed 1 percent for small firms in any covered industry (66 FR 6108).

Even if all the additional hearing loss cases estimated to result from this year's revisions were distributed among the 541,988 small firms that keep the injury and illness records (as OSHA identified in its Year 2001 Final Economic Analysis) the average cost of the current revisions per small firm would be less than two dollars.

OSHA hereby certifies that the current revision to the hearing loss recording provisions, with an estimated annual cost of just over a million dollars, will not have a significant impact on a substantial number of small entities.

For the purposes of the Unfunded Mandates Reform Act of 1995, as well as Executive Order 12875, this rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, or increased expenditures by the private sector of more than $100 million in any year.

This rule has been reviewed in accordance with Executive Order 13132 (52 FR 41685), regarding Federalism. Because this rulemaking action involves a “regulation” issued under section 8 of the OSH Act, and not a “standard” issued under section 6 of the Act, the rule does not preempt State law, see 29 U.S.C. 667(a). The effect of the rule on States is discussed in the State Plans section of this preamble.

OSHA will modify its previously approved information collection requirements prior to the January 1, 2003 effective date.

The 26 States and territories with their own OSHA-approved occupational safety and health plans must adopt a comparable regulation within six months of the publication date of this final regulation. These states and territories are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Connecticut, New Jersey, and New York have OSHA approved State Plans that apply to state and local government employees only.

A few commenters urged OSHA to make sure that the State Plan States have the same recording criteria as federal OSHA (see, e.g., Exs. 3-22, 3-30, 3-49, 3-55). During 2002, the State Plan States were allowed to maintain their policies for the recording of hearing loss to maintain their former requirements, while OSHA reconsidered what the appropriate recording criteria should be. In the Federal Register document announcing the one year delay and the interim policy for year 2002, OSHA stated that when it issues a final determination for the recording of occupational hearing loss for calendar years 2003 and beyond, the states would be required to have identical criteria (66 FR 52033). Now that OSHA has issued its final determination, the States are required to promulgate identical criteria.

This document has been deemed significant under Executive Order 12866 and has been reviewed by OMB.

This document was prepared under the direction of John L. Henshaw, Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is issued pursuant to section 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657).

The BSA, Public Law 91-508, as amended, codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5332, authorizes the Secretary of the Treasury, inter alia , to issue regulations requiring financial institutions to keep records and file reports that are determined to have a high degree of usefulness in criminal, tax, and regulatory matters, or in the conduct of intelligence or counter-intelligence activities to protect against international terrorism, and to implement counter-money laundering programs and compliance procedures. 1 Regulations implementing Title II of the BSA (codified at 31 U.S.C. 5311 et seq. ) appear at 31 CFR part 103. The authority of the Secretary to administer the BSA has been delegated to the Director of FinCEN.

The Secretary of the Treasury was granted authority in 1992, with the enactment of 31 U.S.C. 5318(g), 2 to require financial institutions to report suspicious transactions. As amended by the USA Patriot Act, subsection (g)(1) states generally:

Subsection (g)(2)(A) provides further that

Subsection (g)(3)(A) provides that neither a financial institution, nor any director, officer, employee, or agent of any financial institution

Finally, subsection (g)(4) requires the Secretary of the Treasury, “to the extent practicable and appropriate,” to designate “a single officer or agency of the United States to whom such reports shall be made.”  3 The designated agency is in turn responsible for referring any report of a suspicious transaction to “any appropriate law enforcement, supervisory agency, or United States intelligence agency for use in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.” Id., at subsection (g)(4)(B).

Section 356 of the USA Patriot Act required Treasury, after consultation with the Securities and Exchange Commission and the Board of Governors of the Federal Reserve System, to publish proposed regulations before January 1, 2002, requiring broker-dealers to report suspicious transactions under 31 U.S.C. 5318(g). In accordance with this requirement, Treasury published a Notice of Proposed Rulemaking relating to suspicious transaction reporting by broker-dealers on December 31, 2001. Section 356 requires final regulations to be issued by July 2, 2002.

The regulation of the securities industry in general and of broker-dealers in particular relies on both the Securities and Exchange Commission (the “SEC”) and the registered securities associations and national securities exchanges (so-called self-regulatory organizations or “SROs”). Broker-dealers have long reported securities law violations through existing relationships with law enforcement, the SEC, and the SROs. The SEC and the SROs have taken measures to address money laundering concerns at broker-dealers. 4 The SEC adopted rule 17a-8 in 1981 under the Securities and Exchange Act of 1934 (“Exchange Act”), which enables the SROs, subject to SEC oversight, to examine for BSA compliance. Accordingly, both the SEC and SROs will address broker-dealer compliance with this rule.

Certain broker-dealers have been subject to suspicious transaction reporting since 1996. In particular, broker-dealers that are affiliates or subsidiaries of banks or bank holding companies have been required to report suspicious transactions by virtue of the application to them of rules issued by the federal bank supervisory agencies. In April 1996, banks, thrifts, and other banking organizations became subject to a requirement to report suspicious transactions pursuant to final rules issued by FinCEN, 5 under the authority contained in 31 U.S.C. 5318(g). In collaboration with FinCEN, the federal bank supervisors (the Board of Governors of the Federal Reserve System (“Federal Reserve”), the Office of the Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation (“FDIC”), the Office of Thrift Supervision (“OTS”), and the National Credit Union Administration (“NCUA”)) concurrently issued suspicious transaction reporting rules under their own authority. See 12 CFR 208.62 (Federal Reserve Board); 12 CFR 21.11 (OCC); 12 CFR 353.3 (FDIC); 12 CFR 563.180 (OTS); and 12 CFR 748.1 (NCUA). The bank supervisory agency rules apply to banks, non-depository institution affiliates and subsidiaries of banks and bank holding companies (including broker-dealers), and bank holding companies (including bank holding companies that are themselves broker-dealers). 6 The final rule contained in this document applies to all broker-dealers, without regard to whether they are affiliates or subsidiaries of banks or bank holding companies. 7

The provisions of 31 U.S.C. 5318(h), added to the BSA in 1992 by section 1517 of the Annunzio-Wylie Anti-Money Laundering Act, authorize the Secretary of the Treasury “[i]n order to guard against money laundering through financial institutions * * * [to] require financial institutions to carry out anti-money laundering programs.” 31 U.S.C. 5318(h)(1). Those programs may include “the development of internal policies, procedures, and controls”; “the designation of a compliance officer”; “an ongoing employee training program'; and “an independent audit function to test programs.” 31 U.S.C. 5318(h)(A-D). Section 352 of the USA Patriot Act amended section 5318(h) to require all entities defined as “financial institutions” under the BSA, including broker-dealers, to develop and implement anti-money laundering programs by April 24, 2002.

On April 23, 2002, FinCEN promulgated regulations under section 352 of the USA Patriot Act. 8 Among other things, the rules provide that broker-dealers will be deemed to be in compliance with section 352 of the USA Patriot Act if they establish and maintain anti-money laundering programs as required by the SEC or SROs. The SEC has recently published Orders approving rules proposed by the National Association of Securities Dealers, Inc. (“NASD”), the New York Stock Exchange, Inc. (“NYSE”), and the Philadelphia Stock Exchange, requiring member organizations to develop and implement anti-money laundering programs. 9 The rules were drafted to provide minimum standards for the mandatory anti-money laundering program requirement contained in section 352 of the USA Patriot Act. In addition, these securities self-regulatory organization rules will also require broker-dealers to have compliance programs for suspicious transaction reporting. 10

On April 25, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone, Liquefied Natural Gas Tankers, Cook Inlet, AK” in the Federal Register (67 FR 20474). We received six letters commenting on the proposed rule. No public hearing was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Threats of terrorist attacks on the maritime infrastructure have heightened security concerns in United States ports. Due to the flammable nature of LNG tankers, it is important to develop this rulemaking and implement security measures without delay to prevent possible sabotage, subversive activity and terrorist attacks to the LNG tankers. The delay encountered, if normal rulemaking procedures were followed, would be contrary to the public interest. We must take immediate action to protect the LNG tankers, Port Nikiski, and persons and property in the maritime community from potential hazards. In addition, a commercial fisheries opening commences on July 8, 2002, in Cook Inlet and set netters fish in the waters underneath and surrounding the LNG pier. This rule must go into effect prior to this opening so that we may collect the necessary information from the fishermen to avoid disruption of their commercial business.

The Coast Guard is establishing permanent security zones to safeguard LNG tankers, Nikiski marine terminals, the community of Nikiski, and the maritime community from sabotage or subversive acts and incidents of a similar nature.

This rule establishes a 1000-yard radius security zone around LNG tankers while the vessels are moored at the Phillips Petroleum LNG Pier, Nikiski, AK. It also creates a 1000-yard radius moving security zone around the LNG tankers during their inbound and outbound transits in the navigable waters of the United States; specifically, starting and ending at the Homer Pilot Station in Cook Inlet, AK. The security zones are designed to permit the safe and timely mooring, loading and departure of the vessels and the safe transit through Cook Inlet by minimizing potential waterborne threats to this operation. The limited size of the zone is designed to minimize impact on other mariners transiting through the area while ensuring public safety by preventing interference with the safe and secure loading and transit of the tankers.

This rule also requires a collection of information from fishing vessel operators and owners that conduct fishing operations in the vicinity of the LNG pier. Fishing vessel operators and owners will be required to submit this information only one time, but are required to notify the Marine Safety Detachment Kenai, Alaska if any of the information changes.

We received 6 letters containing 10 comments in response to our NPRM. The information in this section discusses the comments we received, provides the Coast Guard's response, and explains any changes we are making to the regulation.

One comment supported the establishment of a permanent security zone around LNG vessels.

Four comments requested that it be known for the record that the set net fishermen using the area around the Phillips Petroleum LNG pier, and other Nikiski marine terminals, started fishing in these waters and had fishermen's leases with the State of Alaska, before the aforementioned facilities were built.

Four comments stated that they did not expect the security zone, as it stands now, to interfere with their commercial fishing business.

One comment said it was unclear as to whether the security zone in § 165.1709(b)(ii)(C) includes both security zones. The stated section has been moved to § 165.1709(b)(ii)(D) and includes the security zone around the Phillips Petroleum LNG Pier. We have added wording to the new section to clarify this point.

We made two changes to the regulation as proposed in the NPRM. Because these changes were not subject to comment, we are issuing an interim rule with request for comments on these two changes.

We changed § 165.1709(b)(3), concerning broadcasting a Notice to Mariners informing vessel operators of the LNG tankers' exact arrivals and departures. Due to security reasons, the LNG tankers exact arrivals and departures will not be broadcast. Instead, we will issue a Local Notice to Mariners with general information and a bimonthly Broadcast Notice to Mariners to remind vessel operators of the security zones for the LNG tankers.

The second change we made was to § 165.1709(b)(1)(ii)(C). We moved the original sentence to § 165.1709(b)(1)(ii)(D) and added § 165.1709(b)(1)(ii)(E). We then added a new sentence to § 165.1709(b)(1)(ii)(C) to clarify how often and when we need to collect information from fishing vessel operators and owners before allowing them to fish in the security zone.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This finding is based on the minimal time that vessels will be restricted from the zone, that vessels may still transit through the waters of Cook Inlet and dock at other Nikiski marine terminals.

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

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the vicinity of the Phillips Petroleum LNG Pier during the time this zone is activated; and the owners or operators of fishing vessels operating their nets in the vicinity of the Phillips Petroleum LNG Pier during the months of July through August.

These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. Marine traffic will still be able to transit through Cook Inlet during the zones' activation. Additionally, vessels with cargo to load or unload from other Nikiski marine terminals in the vicinity of the zone will not be precluded from mooring at or getting underway from the terminals. The owners of fishing vessels that typically fish in the vicinity of the LNG pier during the summer months will not be prohibited from operating if they notify and provide information to the Coast Guard Marine Safety Detachment in Kenai before fishing in the security zone. The Coast Guard will collect information from them that is essential to keeping the pier secure from sabotage or subversive activities.

This rule modifies an existing collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. We did not receive any comments on Collection of Information.

The Captain of the Port, Western Alaska requires information on fishing vessel owners and operators, and their vessels, desiring to fish in the security zone around the Phillips Petroleum LNG Pier. This information is required to ensure port and vessel safety and security and to ensure uninterrupted fishing industry openings and to control vessel traffic, develop contingency plans, and enforce regulations.

You are not required to respond to a collection of information unless it displays a currently valid control number from OMB.

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 considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying 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 . This temporary security zone of short duration is necessary to provide for the security of the United States. The security zone will prevent access to unauthorized persons who may attempt to enter the secure area of this nationally significant event via the waterfront seawall, and safeguard the United States and United States' interests during this event. To delay the effective date would be impracticable and contrary to the public interest.

On July 4, 2002, an anticipated 400,000 visitors will attend the annual July 4th celebration on the National Mall in Washington, DC. This security zone is necessary to prevent access to unauthorized persons who may attempt to enter the secure area of this nationally significant event via the waterfront seawall, and to provide for the security of the spectators and participants.

This rule, for security reasons, limits access to the regulated area to those vessels authorized to enter and operate within the security zone. The Captain of the Port or his designated representative may authorize access to the security zone. In addition, the Coast Guard will make notifications via maritime advisories.

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).

This temporary rule will be in effect for a limited duration. The Captain of the Port or his designated representative may authorize access to the security zone. In addition, the Coast Guard will make notifications via maritime advisories.

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 business, 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 and operators of vessels intending to operate or anchor in the Georgetown Channel, Potomac River, from the George Mason Memorial Bridge upstream to the Arlington Memorial Bridge from 6 a.m. to 11 p.m. on July 4, 2002.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than twenty four hours. Although the security zone will apply to the entire width of the river, traffic will be allowed to pass through the zone with the permission of the Coast Guard Captain of the Port or his designated representative. Additionally, the Coast Guard will make notifications via marine advisories so that mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed 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 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 Security Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to security 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 preliminarily concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This is a security zone less than one week in duration. The environmental analysis and “Categorical Exclusion Determination” will be prepared and submitted after establishment of this temporary security zone. The Categorical Exclusion Determination will be made available in the docket for inspection and copying where indicated under ADDRESSES .

On June 11, 2002 (67 FR 39856), EPA published a final rulemaking action announcing approval of the revisions Code of Maryland Administrative Regulations (COMAR) governing visible emissions and open burning. In this document, EPA inadvertently included a reference in section 52.1070(c)(173)(i)(B)( 1 ) to a revised COMAR provision which is unrelated to the SIP revision action. This document corrects the erroneous language.

In rule document 02-14491 published in the Federal Register on June 11, 2002 (67 FR 39856), on page 39858 in the third column, paragraph 52.1070(c)(173)(i)(B)( 1 ) is corrected to read “COMAR 26.11.06.02A(1)—introductory text of paragraph (1) [revised], and 26.11.06.02A(1)(j) [added].”

Section 553 of the Administrative Procedure Act, 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. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore 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)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of August 12, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This correction to 40 CFR 52.1070(c)(173)(i)(B)( 1 ) for Maryland is not a “major rule” as defined by 5 U.S.C. 804(2).

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

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On February 8, 2001, and October 4, 2000, these rule submittals were found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved a version of BAAQMD Rule 8-34 into the California SIP on March 22, 1995. The BAAQMD adopted revisions to the SIP-approved version of Rule 8-34 on July 17, 1996, but this version was not submitted for the SIP.

SCAQMD adopted Rule 1150.1, “Control of Gaseous Emissions from Active Landfills,” and Rule 1150.2, “Control of Gaseous Emissions from Inactive Landfills,” on April 5, 1985 and October 18, 1985, respectively. On May 6, 1997, EPA published a limited approval/limited disapproval of these rules (62 FR 24574). As a result, sanctions clocks were started on July 7, 1997. On April 10, 1998, SCAQMD amended Rule 1150.1 to correct the deficiencies identified in EPA's limited disapproval action. SCAQMD also rescinded Rule 1150.2 and incorporated the requirements of Rule 1150.2 into amended Rule 1150.1, which was retitled: “Control of Gaseous Emissions from Municipal Solid Waste Landfills.” On June 23, 1998 CARB submitted the amended Rule 1150.1, “Control of Gaseous Emissions from Municipal Solid Waste Landfills,” to replace both Rule 1150.1 and Rule 1150.2. On January 6, 1999, EPA published a proposed approval of amended Rule 1150.1 (64 FR 818). EPA also published an interim final determination that the SCAQMD had corrected the deficiencies for which the sanctions clocks began on July 7, 1997 (64 FR 754). The interim final determination did not stop the sanctions clocks but did defer the imposition of sanctions. EPA never finalized the proposed approval because SCAQMD had begun working on another revision to the rule. SCAQMD amended Rule 1150.1 on March 17, 2000, and CARB submitted this version of the rule on July 26, 2000.

These rules control landfill gas emissions, which include volatile organic compounds. Each rule has an associated Technical Support Document (TSD) that contains more information about the rule and EPA's evaluation.

Generally, SIP rules must be enforceable ( see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas ( see section 182(a)(2)(A)), and must not relax existing requirements ( see sections 110(l) and 193). The BAAQMD and SCAQMD regulate ozone nonattainment areas ( see 40 CFR part 81), so BAAQMD Rule 8-34 and SCAQMD Rule 1150.1 must fulfill RACT.

Although there is no Control Technique Guideline document for the source category regulated by these rules, the following guidance and policy documents were used for reference to help evaluate specific enforceability and RACT requirements:

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

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

3. The New Source Performance Standards for Municipal Solid Waste Landfills, as found in 40 CFR part 60, Subpart WWW.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs contain more information on our evaluation.

The TSDs describe additional rule recommendations that do not affect EPA's current action but are recommended for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. This action will also stop the sanctions clocks that began on July 7, 1997, for SCAQMD Rules 1150.1 and 1150.2. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by July 31, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on August 30, 2002. This will incorporate these rules into the federally enforceable SIP.

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 30, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements ( See section 307(b)(2)).

Throughout this document wherever “we”, “us”, or “our” are used we mean the Environmental Protection Agency.

In this final rulemaking action, we are addressing comments received regarding our NPR and we are approving R307-310 as a revision to the Utah SIP.

With the publication of our NPR on May 1, 2002, (67 FR 21607), we utilized our parallel processing procedure  1 that allows EPA to propose rulemaking on a SIP revision, and solicit public comment, at the same time the State is processing the SIP revision.

The Utah Air Quality Board (UAQB) proposed the SIP revision for a 30-day State public comment period that began on April 1, 2002, and ended on April 30, 2002. The State conducted a public hearing on April 22, 2002. Final action and approval was taken by the UAQB on May 13, 2002. Rule R307-310 became State-effective on May 13, 2002.

On May 13, 2002, the Governor submitted the final version of rule R307-310 to us for approval into the Utah SIP.

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This public process must occur prior to the State submitting its final revisions to us.

At the March 13, 2002, UAQB meeting, the UAQB proposed for public comment the new rule R307-310. The Utah Air Quality Board (UAQB) proposed the SIP revision for a 30-day State public comment period that began on April 1, 2002, and ended on April 30, 2002. The State conducted a public hearing on April 22, 2002. Final action and approval was taken by the UAQB on May 13, 2002. Rule R307-310 became State-effective on May 13, 2002.

On May 13, 2002, the Governor submitted the final rule R307-310 to us for approval into the Utah SIP. In a letter dated June 6, 2002, from Robert E. Roberts, EPA Regional Administrator for Region VIII, to Governor Leavitt of Utah, we determined that the Governor's May 13, 2002, SIP submittal met the completeness criteria in 40 CFR part 51, Appendix V, and therefore the submittal was considered administratively and technically complete.

The Governor's May 13, 2002, final submittal of rule R307-310 and technical justification did not change from the proposed version on which we based our May 1, 2002, NPR. Therefore, our review and discussion of Utah's rule R307-310 and accompanying technical justification will not be restated here. The reader is referred to our May 1, 2002, NPR (see 67 FR 21607) for any further information.

In response to our May 1, 2002, NPR (67 FR 21607), we received a comment letter from the Utah Chapter of the Sierra Club. The following discussion summarizes and responds to those comments.

Comment 1: The Sierra Club states there is a need to reduce PM 2.5 in Salt Lake County. The Sierra Club states that based on Utah air monitoring data, the area exceeded the PM 2.5 National Ambient Air Quality Standard (NAAQS) seven times in 2001 and to date, twice in 2002. The Sierra Club asserts that reducing PM 2.5 and its precursors in Salt Lake County must be taken seriously in order to prevent a violation of the PM 2.5 NAAQS. Sierra Club further states the area is in danger of violating the current PM 2.5 NAAQS, which itself could be strengthened after the current review process.

Response to Comment 1 : EPA is aware of the PM 2.5 NAAQS exceedances that have been recorded in Salt Lake County. However, we also note the current levels of emissions have not caused the area to violate the PM 2.5 NAAQS. In addition, many areas across the nation are like Salt Lake County in that data is still being gathered for future PM 2.5 NAAQS designations. To date, EPA has not designated areas attainment or nonattainment for the PM 2.5 NAAQS under section 107 of the Clean Air Act (CAA) and we have also not established an implementation policy for the PM 2.5 NAAQS. EPA is currently in the process of developing a PM 2.5 implementation policy. Finally, the PM standards, as correctly noted by Sierra Club, are currently undergoing review by EPA. A target for completion for this review is 2004. At this point in time, prior to the designation of areas for PM 2.5 , no obligations to submit SIPs requiring emission reductions or controls for PM 2.5 apply to the State or the Salt Lake County area. Consequently, we are not in a position to disapprove this trading mechanism based on potential impacts on PM 2.5 .

Comment 2: The Sierra Club states that the CAA section 176(c )(1)(B) specifies that conformity to an implementation plan means that such activities will not (I) “cause or contribute to any new violation of any standard in any area”. Sierra Club asserts it is clear from this section that transportation plans must not cause or contribute to a violation of PM 2.5 NAAQS, as well as NAAQS for PM 10 , ozone (eight hour as well as 1 hour), carbon monoxide and other pollutants for which there is a standard.

Response to Comment 2: We disagree with the conclusions that Sierra Club has expressed regarding the intentions of section 176 of the CAA. Section 176(c)(5) of the CAA as well as Title 40 of the Code of Federal Regulations (CFR) 93.102(b) specifically state that conformity only applies to nonattainment and maintenance areas, and only to the specific pollutant for which the area was designated nonattainment. Conformity does not apply with respect to either the new PM 2.5 or the new 8-hour ozone standard until one year after an area is designated as nonattainment for one of those standards, according to Clean Air Act Section 176(c)(6). As EPA has not yet designated any areas nonattainment for either the PM 2.5 NAAQS or the 8-hour ozone NAAQS, conformity determinations for the PM 2.5 and the 8-hour ozone standards are currently not required. Furthermore, section 176 of the CAA contains no requirement that we consider the PM 2.5 and the 8-hour ozone standards in deciding whether to approve this SIP revision.

Comment 3: Sierra Club stated the following: “All NO X that becomes PM 10 is PM 2.5 , whereas not all direct PM 10 is PM 2.5 . The proposed rule should, but does not, make this distinction. The proposed rule does not compare the portion of direct PM 10 that is PM 2.5 with the portion of NO X that becomes PM 2.5 when asserting that there is a benefit in moving part of the direct PM 10 budget to the NO X budget in the PM 10 SIP. There is a difference in health effects between breathing PM 2.5 nitrates and breathing coarse PM 10 road dust.”

Response to Comment 3: As we noted in our response to comment 1 above, EPA has not designated areas attainment or nonattainment for the PM 2.5 NAAQS under section 107 of the CAA and we have not established an implementation policy for the PM 2.5 NAAQS. If Salt Lake County is ultimately designated nonattainment for PM 2.5 , the State will then need to submit a SIP revision to address PM 2.5 pursuant to applicable deadlines. At that time, the State may need to reevaluate the budget trading rule, R307-310, in relation to a PM 2.5 attainment demonstration. At this time, we are not in a position to require a rigorous analysis of impacts on PM 2.5 attainment.

However, we have reviewed the ambient air quality data for PM 2.5 for Salt Lake County that has been archived by the State in our Aerometric Information and Retrieval System (AIRS) national database. Based on the information in AIRS, we have determined that were we to do designations at this point in time, Salt Lake County would be attainment for PM 2.5 . Further, using the maximum concentration monitor for Salt Lake County, the preliminary design value for PM 2.5 would be 55 micro grams per cubic meter (ug/m 3 ) and would correlate to only 85% of the PM 2.5 24-hour standard of 65 ug/m 3 . Therefore, we do not believe that our approval of R307-310, which does not involve trading of PM 10 or NO X emissions from any source category other than motor vehicles, will lead to a violation of the PM 2.5 NAAQS. We also note that motor vehicle NO X emissions will decline significantly starting in 2004 based on new Federal tailpipe emission standards for vehicles and the local controls (Inspection and Maintenance along with On-Board Diagnostics) as are described further in our response to comment 5 below.

An additional point we would like to make is that not all NO X forms particles. Of the NO X that does form particles, initially it may be all PM fines, but over time particles may aggregate to form larger particles. We noted this aspect in our NPR at 67 FR 21609: “After this initial conversion, only a fraction of the gaseous nitric acid will condense as ammonium nitrate PM 10 depending on the equilibrium considerations. Finally, during the gas-to-particle conversion process, deposition will remove a significant amount of material.”

Comment 4: Sierra Club states: “There is a discussion of general NO X conversion rates to nitric acid and PM 10 in columns 1 and 2 on p. 21609. Does this general formula relate to NO X conversion rates during the type of inversions we have during the winter in Salt Lake County? Our high levels of ambient PM 2.5 occur during these inversions. There is also the statement that “Another concern is that the rate of conversion to PM 10 may be so long that the precursor may not entirely convert to PM 10 within the same nonattainment area.” Is this statement true of what happens to NO X conversion to PM 10 in our inversions? To what extent is it possible for the conversion to occur outside the area of the inversion?”

Response to Comment 4: With respect to the questions regarding conversion rates, we have discussed this with the State. Based on the State's use of our air dispersion model, UAM-AERO, to perform preliminary modeling efforts, we believe that the general formula stated in our NPR would apply to the Salt Lake County area. The general statement in our NPR regarding length of time for conversion may also be applicable to the Salt Lake County area, but we can not specifically quantify the extent to which conversion would occur outside the area of an inversion in the Salt Lake area.

Comment 5: Sierra Club stated there was a lack of consideration of alternatives to reduce NO X emissions; “The proposed rule appears to be an example of the emphasis of many MPO's, state and some federal agencies on moving numbers around to show conformity of transportation plans with the SIPs, rather than expending effort on developing effective measures to reduce Vehicle Miles Traveled (VMT) and mobile source emissions. This is a major concern for us. To us, the excessive NO X emissions show that we must seek alternatives that would reduce mobile NO X .”

Response to Comment 5.: We are not required to consider alternatives to reduce NO X emissions. Our obligation under the CAA is to evaluate submitted SIP revisions against the requirements of the CAA; if a submission meets the CAA's requirements, we are required to approve it, even if there might be other alternatives that would reduce emissions more. As we have noted in our NPR, the transportation conformity rule at 40 CFR 93.124(c) allows for trading between budgets if the SIP established a mechanism for doing so. We have evaluated Utah's trading rule and have concluded it will not cause violations of the NAAQS. This SIP revision meets the requirements of the CAA and we are approving it.

Furthermore, we believe NO X emissions will continue to decrease in Salt Lake County over time. First, on February 10, 2000, EPA published a final rule in the Federal Register ( see 65 FR 6698) that set specific Tier II on-road motor vehicle emission specifications for new-manufactured vehicles. Starting in 2004, new vehicles will have to meet more stringent tailpipe emission standards including a standard for NO X . As these new vehicles enter the fleets of metropolitan areas, such as Salt Lake County, significant reductions in NO X emissions will be realized. Additional NO X reductions were realized beginning in 2001 from our National Low Emitting Vehicle (NLEV) agreement with automakers and our Heavy Duty Diesel (HDD) emission requirements ( see 65 FR 59895). Second, Salt Lake County continues to operate a motor vehicle emissions inspection and maintenance (I/M) program which identifies vehicles that do not pass required emission specifications and must be repaired. This I/M program includes emission specifications for NO X . In addition to the County's existing I/M program, the State has also required all four Wasatch Front Counties (Weber, Davis, Salt Lake, and Utah) to implement EPA's On-Board Diagnostics II (OBD II) program. OBD II uses information from the vehicle's on-board computer system to determine if there are faults in the emissions control systems, detect an engine malfunction or deterioration, and provide information that allows for early diagnosis of emission control equipment malfunction. The Governor submitted the State's OBD II rule to EPA for approval into the SIP. We have published a notice proposing to approve the State's OBD II rule ( see 67 FR 9425, March 1, 2002) and are currently preparing a final rule for the approval of the OBD II program.

The WFRC's conformity determination for the Long Range Transportation Plan (LRTP), that was approved on January 11, 2002, by the Federal Highway Administration (FHWA), reflects the benefits of the above programs in the projected future year emissions from motor vehicles. WFRC's conformity determination shows that starting with 2012, there would be no need to trade from the PM 10 emission budget to the NO X emission budget to show conformity, as the projected 2012 NO X emissions of 31.56 tons per day would be below the PM 10 SIP's NO X budget of 32.30 tons per day. Information from the WFRC's conformity determination, that was approved by the FHWA, is provided below:

Budgets for 2002 (derived from the PM 10 SIP): NO X = 38.84 tons per day (tpd), PM 10 = 39.91 tons per day.

Budgets for 2003 and beyond (derived from the PM 10 SIP): NO X = 32.30 tpd, PM 10 = 40.30 tpd.

Excerpts from the WFRC's LRTP Table 10 are as follows:

Comment 6: Sierra Club stated they believe the rule should not have been exempted from review under Executive Order 13045 Protection of Children from Environmental Health Risks and Safety Risks (They reference Executive Order 13040). “Complying with the Executive Order would mean that there would have to be an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The Agency did not consider other alternatives. We wish to point out that children are especially susceptible to the dangers of PM2.5 pollution. Children in Salt Lake County were subjected to 24 days of PM2.5 pollution above the 40.5 ug/m3 level at which EPA requires health alerts to be issued to the susceptible population. Those 24 days were within a 62 day time period from December 18, 2001 through February 17, 2002.”

Response to Comment 6: We are not permitted to consider health and safety risks or require or engage in an alternatives analysis in acting on SIPs. Under the CAA, we must approve SIPs if they meet the requirements of the CAA. The State's SIP revision meets the CAA's requirements, and thus, we are required to approve it, even though there might be other alternatives the State could have adopted that would have resulted in less risk to children. Furthermore, the Executive Order applies only to rules that are considered economically significant under Executive Order 12866 which this rule is not. Consequently, Executive Order 13045 does not apply to this action.

Comment 7: Sierra Club stated: “It is very important for EPA to be able to perform evaluation analyses of unintended effects of the proposed trading rule at any time deemed appropriate and to be able to issue a SIP call to remedy the adverse effects if the State does not pursue remedy.”

Response to Comment 7: We agree with the Sierra Club that, as this is the first use of the provisions of 40 CFR 93.124(c), the State and EPA must be alert to unintended adverse impacts. In addition, we wish to reiterate that if we determine there are adverse air quality effects associated with the implementation of the new rule, R307-310, or if we determine that the State has failed to make the necessary SIP revisions to remedy identified adverse effects, EPA may exercise our authority to issue a SIP call consistent with the provisions of section 110(k)(5) of the Clean Air Act (CAA) as amended in 1990.

In this action, we are approving the Governor's May 13, 2002, submittal of a revision to the Utah State Implementation Plan—namely, new rule R307-310—that would allow the trading of a portion of the PM 10 motor vehicle emissions budget to the NO X motor vehicle emissions budget in the Salt Lake County PM 10 SIP. This trading mechanism will allow a portion of the PM 10 motor vehicle emissions budget to be applied instead to the NO X motor vehicle emissions budget on a 1:1 ratio, thus increasing the NO X motor vehicle emissions budget and decreasing the PM10 motor vehicle emissions budget in the Salt Lake County PM10 SIP by an equivalent amount. These adjusted budgets would then be used for transportation conformity purposes. This final action will become effective on July 31, 2002.

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

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

This rule is not subject to Executive Order 13045 because it is not economically significant and EPA does not have the discretion to engage in a risk assessment or alternatives analysis in acting on SIP revisions.

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves state rules implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

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

This rule is not subject to Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

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

This final approval will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the SIP final approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). Therefore, because the final rule does not create any new requirements, I certify that the final rule will not have a significant economic impact on a substantial number of small entities.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 31, 2002.

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

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2) of the Clean Air Act.)

States which have received final authorization from EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to and consistent with the Federal program. States are required to have enforcement authority which is adequate to enforce compliance with the requirements of the hazardous waste program. Under RCRA Section 3009, States are not allowed to impose any requirements which are less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in Title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

Idaho initially received final authorization on March 26, 1990, effective April 9, 1990 (55 FR 11015), to implement the State's hazardous waste management program. EPA also granted authorization for changes to Idaho's program on April 6, 1992, effective June 5, 1992 (57 FR 11580), June 11, 1992, effective August 10, 1992 (57 FR 24757), April 12, 1995, effective June 11, 1995 (60 FR 18549), and October 21, 1998, effective January 19, 1999 (63 FR 56086).

On May 1, 2001, Idaho submitted a final program revision application to EPA in accordance with 40 CFR 271.21 seeking authorization of changes to the State program. On August 22, 2001, EPA published proposed and immediate final rules announcing its intent to grant Idaho final authorization for revisions to Idaho's hazardous waste program. The proposed rule can be found at 66 FR 44107, August 22, 2001. The immediate final rule appears at 66 FR 44071, August 22, 2001.

Along with its intent to immediately authorize revisions to the Idaho hazardous waste management program, EPA announced the availability of the authorization revision application and rulemaking for public comment. EPA received one adverse comment during the comment period in the form of a “Petition to the United States Environmental Protection Agency to Commence Proceedings for Withdrawal of the Idaho Department of Environmental Quality (IDEQ) as the RCRA Authority for the State of Idaho” (Petition) challenging the administration and enforcement of the hazardous waste program by the State of Idaho and seeking withdrawal of authorization. EPA withdrew its Immediate Final Rule on October 5, 2001, 66 FR 50833, in order to respond to the adverse comment. EPA's proposed rule, 66 FR 44107, was not withdrawn and was retained for later consideration. EPA has taken into consideration comments in the Petition relating to the Idaho hazardous waste management program in taking today's action. The significant issues raised by the Commentors for purposes of this revision authorization and EPA's responses follow below.

Today's action is not a determination on the merits of the Petition to withdraw federal authorization for environmental programs in Idaho. In response to the Petition, EPA initiated an informal investigation of the authorized hazardous waste program in Idaho. Based on the results of that investigation, on March 7, 2002, the Regional Administrator for Region 10 found no basis to commence withdrawal proceedings and denied the Petition. That response is included in the administrative record for this rulemaking. The Petition raised many issues not relevant to the revision authorization. EPA considered those issues fully in its response to the Petition.

This rulemaking considers and responds to the comments relevant to the revision authorization. Commentors raised issues in the following areas: (1) IDEQ's compliance with the permitting requirements for authorized hazardous waste programs; (2) IDEQ's enforcement of the authorized hazardous waste program; (3) IDEQ's compliance with the Memorandum of Agreement (MOA) for the authorized hazardous waste program; and (4) IDEQ's funding and staffing of the authorized program.

Comment area #1: EPA received comment relating to IDEQ's implementation of RCRA permitting. The comments generally asserted that the IDEQ was not issuing permits as required but was allowing facilities to operate under interim status without permits, and was for those permits issued, not issuing permits which conformed to the requirements of 40 CFR part 271. Commentors specifically focused on permitting issues involving the Idaho National Environmental and Engineering Laboratory (“INEEL”) facility, a mixed (radioactive and hazardous) waste facility in Idaho. Commentors claimed that IDEQ had not issued permits to units at INEEL and had allowed units to illegally operate without permits. Commentors also claimed that permits issued by IDEQ to the INEEL facility were incomplete and failed to provide for full public participation.

Response: To meet EPA approval standards for authorization, State programs must include requirements for permitting. See 40 CFR 271.1(c). States with authorized hazardous waste programs under 40 CFR part 271 must have legal authority to implement permitting provisions as set forth in 40 CFR 271.13 “Requirements with respect to permits and permit applications.” 40 CFR 270.13(a) provides: “State law must require permits for owners and operators of all hazardous waste management facilities required to obtain a permit under 40 CFR part 270 and prohibit the operation of any hazardous waste management facility without such a permit, except that States may, if adequate legal authority exists, authorize owners and operators of any facility which would qualify for interim status under the Federal program to remain in operation until a final decision is made on the permit application, * * * .” Idaho's legal authorities are reviewed with each revision to the authorized program and were reviewed prior to EPA's issuance of the August 22, 2001 immediate final rule. EPA's review of Idaho legal authorities did not disclose any lack of authority in Idaho law to require hazardous waste management facilities to obtain a permit or to operate as an interim status facility.

40 CFR 271.14, “Requirements for permitting,” mandates that: “All State programs under this subpart must have legal authority to implement each of the following provisions and must be administered in conformance with each; except that States are not precluded from omitting or modifying any provisions to impose more stringent requirements * * * .” The regulation then specifies that 40 CFR 270.1(c)(1), 270.4, 270.5, 270.10 through 33; 270.40, 270.41, 270.43, 270.50, 270.60, 270.61, 270.64 are mandatory. Idaho incorporates the federal regulations by reference and as a consequence of that incorporation, each of these requisite provisions is included in Idaho's hazardous waste regulations. Idaho's authority to compel permitting is established. EPA next turns to Idaho's implementation of that authority.

Idaho's authorized hazardous waste program contains a small universe of facilities subject to the requirement to obtain a final RCRA permit and of this universe the INEEL facility represents the largest and most complex facility subject to RCRA permitting requirements in the State. EPA's database shows that all facilities subject to the hazardous waste permitting requirements of the authorized program in Idaho have been issued final RCRA permits with the exception of the INEEL facility, which has been partially permitted. The federal program allows a facility to receive a partial permit. 40 CFR 270.1(c)(4) provides: “EPA may issue or deny a permit for one or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility. The interim status of any unit for which a permit has not been issued or denied is not affected by the issuance or denial of a permit to any other unit at the facility.” Idaho's hazardous waste program, which incorporated the federal regulation at 40 CFR 270.1(c)(4) by reference, has been authorized to allow partial permitting, replacing “EPA may issue” with “IDEQ may issue.” See IDAPA 16.01.05.012.

The Commentors maintain permitting less than all units at a facility results in an incomplete permit and is consequently non-compliant with the requirement to obtain a RCRA permit for the facility. The regulations clearly allow for the use of partial permitting and such use is in compliance with the RCRA permitting requirements. At a complex federal facility, such as INEEL with 137 hazardous waste management units, partial permitting is an appropriate and compliant approach to permitting the facility. Those units which have not yet been permitted are required to comply with the interim status standards until permitted, thus there is no regulatory gap in managing hazardous wastes at a facility where partial permits have been issued.

The Commentors also generally asserted that the IDEQ did not allow full public participation in permit decision making. Those requirements are found at 40 CFR part 124. Idaho incorporated 40 CFR part 124 subparts A and B by reference and is authorized for those regulations. Public participation requirements are applicable at the time of permitting and are applicable to partial permits. Commentors will have an opportunity to comment on units not addressed in a partial permit when those units are themselves permitted.

EPA does not agree that IDEQ failed to comply with the Expanded Public Participation Rule for certain permitting activities at the INEEL facility. The permitting activities occurred before the State of Idaho enacted the rule as part of its hazardous waste program. Idaho enacted the Expanded Public Participation Rule on July 2, 1997; the Idaho hazardous waste program was authorized for the rule on October 21, 1998. Prior to the 1997 enactment, the rule was not a requirement of the hazardous waste program in Idaho and the State could not require compliance with the federal rule. The rule is applicable to permit applications in Idaho currently and must be complied with. Information provided by Commentors on related matters shows that Commentors have availed themselves of the opportunity to comment on permits issued by the IDEQ as allowed under the Expanded Public Participation Rule.

Comment area #2: EPA received comment relating to the IDEQ's enforcement of the authorized hazardous waste program. The Commentors generally asserted that the IDEQ failed to act on violations of permits or program requirements, failed to seek adequate penalties, failed to inspect and monitor hazardous waste activities and failed to initiate closure for non-complaint facilities. The Commentors enforcement concerns focused on enforcement at the INEEL facility.

Response: IDEQ provided EPA with a statistical summary of enforcement actions taken by IDEQ since 1990 at INEEL. IDEQ issued INEEL Notices of Violation at least eight times and assessed cash penalties of $906,031.89 and Supplemental Environmental Projects valued at $342,606.00. EPA, in two separate program reviews, did not find IDEQ's enforcement of its hazardous waste program at INEEL to be problematic and has not found the State's enforcement of the authorized hazardous waste program at INEEL to be inadequate. The Commentors contention that IDEQ failed to close non-compliant facilities is inaccurate and is based on the Commentors' belief that a full permit for all units is required for a facility to be compliant with RCRA. As has been discussed, partial permitting of certain units, while allowing others to remain subject to the interim status standards, does not result in non-compliance for those units not addressed by the partial permit.

Comment area #3: The Commentors asserted that IDEQ was not in compliance with the MOA, a required element of the authorized hazardous waste program.

Response: States are required, for purposes of administering an authorized hazardous waste program, to execute an MOA with EPA. See 40 CFR 271.8. The MOA includes, among others, mandatory provisions to coordinate enforcement and inspection efforts between the state and EPA, including the sharing of information on facilities and permits. The Commentors did not point to any specific area of the MOA where IDEQ was out of compliance with the agreement but discussed concerns with IDEQ's permitting activities at the INEEL facility.

EPA has not found any failure on the part of IDEQ to comply with the currently authorized MOA. Nor, as discussed above, does EPA have cause to find that IDEQ failed to implement the authorized program at the INEEL facility. Although Commentors may disagree with the issuance of partial permits at INEEL, partial permitting is allowed under the federal regulations and is an authorized part of the Idaho hazardous waste program and is not inconsistent with the MOA.

EPA notes that IDEQ submitted a revised MOA as a part of the application package for this rulemaking. The revised MOA will become part of the authorized program as a result of this final rule.

Comment area #4: The Commentors expressed concern over IDEQ's funding and staffing levels and generally asserted that the IDEQ was underfunded and understaffed to carry out an authorized hazardous waste program.

Response: In response to this concern, EPA looked at OSWER Directive 9540.00-10 “Capability Assessment Guidance,” January 30, 1992 for “Resources and Skills Mix” used in assessing overall state capability. The guidance specifies that EPA look at the demonstrated ability of the State to bring sufficient and appropriate resources to the program, regardless of short-term staffing shortages, unpredictable legislative activities regarding appropriations for the state program, and regardless of competing demands for resources available for program priorities. OSWER Directive 9540.00-10. Unacceptable capability would be identified where, for example, a State was significantly understaffed, had a high turnover rate of staff resulting in poor work product and had not made an effort to correct the situation. EPA's review of IDEQ's program description and attachments, which were submitted as part of the authorization package for this revision to the authorized hazardous waste program, did not find the program to be understaffed or to be experiencing a high turnover rate of staff. Rather, the full time equivalent (FTE) personnel devoted to the IDEQ hazardous waste management program adequately meet the staffing component of skills and personnel necessary for an authorized hazardous waste program.

With respect to funding resources available, EPA reviewed funding guidance issued by the Office of Solid Waste (OSW) in 1996. This guidance was issued in the context of providing federal grant money to the states pursuant to Section 3011 of RCRA. The guidance established a minimum funding requirement of $466,666 for maintaining hazardous waste programs in small states , such as Idaho, and with small universes of hazardous waste activities. Idaho's authorization application package for this rulemaking included information indicating that Idaho's contribution to the minimum funding requirement was $943,900, well above the minimum level set by EPA's own guidance.

EPA has made a final determination that Idaho's application for authorization of the revisions to the Idaho authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, with respect to the revisions, we are granting Idaho final authorization to operate its hazardous waste program as described in the revision authorization application. Idaho's authorized program will be responsible for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of RCRA, including the Hazardous and Solid Waste Amendments of 1984 (HSWA). Idaho's authorized program does not extend to Indian country. EPA retains jurisdiction and authority to implement and enforce RCRA in Indian country within the State boundaries.

New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA are implemented by EPA and take effect in States with authorized programs before such programs are authorized for the requirements. Thus, EPA will implement those HSWA requirement and prohibitions in Idaho, including issuing permits or portions of permits, until the State is granted authorization to do so.

The effect of today's action is that a facility in Idaho subject to RCRA must comply with the authorized State program requirements and with any applicable Federally-issued requirement, such as, for example, the federal HSWA provisions for which the State is not authorized, and RCRA requirements that are not supplanted by authorized State-issued requirements, in order to comply with RCRA. Idaho has enforcement responsibilities under its State hazardous waste program for violations of its currently authorized program and will have enforcement responsibilities for the revisions which are the subject of this final rule. EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

This final action approving these revisions will not impose additional requirements on the regulated community because the regulations for which Idaho's program is being authorized are already effective under State law.

EPA is granting final authorization for the revisions to Idaho's federally authorized program described in Idaho's final complete program revision application, submitted to EPA on May 1, 2001. We have made a final determination that Idaho's hazardous waste program revisions, as described in this rule, satisfy the requirements necessary for final authorization. Therefore, we grant Idaho final authorization for all delegable hazardous waste regulations promulgated as of July 1, 1998, as incorporated by reference in IDAPA 16.01.05.(002)-(016) and 16.01.05.997.  1 Any subsequent changes to the Federal program or to State law that occurred after July 1, 1998 are not part of Idaho's authorized RCRA program. EPA is not authorizing IDAPA 16.01.05.000; 16.01.05.001; 16.01.05.006(02); 16.01.05.016(02)(a),(b); 16.01.05.017-996; 16.01.05.998; and 16.01.05.999.

Idaho will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits or portions of permits issued by EPA Region 10 prior to final authorization of this revision will continue to be administered by EPA Region 10 until the issuance or re-issuance after modification of a State RCRA permit and until EPA takes action on its permit or portion of permit. HSWA provisions for which the State is not authorized will continue in effect under the EPA-issued permit or portion of permit. EPA will continue to issue permits or portions of permits for HSWA requirements for which Idaho is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State's authorized rules in 40 CFR part 272. EPA is reserving the amendment of 40 CFR part 272, subpart F for codification of Idaho's program at a later date.

EPA's decision to authorize the Idaho hazardous waste program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151. This includes: (1) All lands within the exterior boundaries of Indian reservations within or abutting the State of Idaho; (2) Any land held in trust by the U.S. for an Indian tribe; and (3) Any other land, whether on or off an Indian reservation that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over “Indian Country” as defined in 18 U.S.C. 1151.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not have substantial direct effects on tribal governments, on the relationships between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution or Use” (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This action does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This final 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. ).

In our August 7, 2001 final rule (66 FR 41316), referred to as the final rule throughout this correcting amendment, we provided an extensive discussion of the inpatient rehabilitation facility (IRF) patient assessment instrument and its implementation that employed various examples to illustrate essential points of the patient assessment process. A number of those examples contain technical errors. In addition, we are making technical corrections to the regulations text where the regulations text inadvertently fails to reflect the policies set forth in the preamble of the final rule.

In section IV of the final rule, we describe the process of using the IRF patient assessment instrument to collect patient data that are the basis of payments made under the IRF prospective payment system. Beginning on page 41330 of the final rule, we describe the schedule for completing, encoding (computerizing), and transmitting data contained in the IRF patient assessment instrument. The rules associated with the assessment schedule are codified at §§ 412.610 and 412.614.

After the patient is admitted, the IRF has a time period to observe the patient's functional status/clinical condition that is then recorded on the patient assessment instrument. This time period is referred to in the final rule as the admission assessment time period. Section 412.610(b) states that “The first day that the Medicare Part A fee-for-service inpatient is furnished Medicare-covered services during his or her current inpatient rehabilitation facility hospital stay is counted as day one of the patient assessment schedule.” Section 412.610(c)(1)(i) specifies the general rule that the admission assessment time period is a span of time that covers calendar days 1 through 3 of the patient's current Medicare Part A fee-for-service hospitalization. The patient's IRF admission day is the first day of the admission assessment time period. For example, Chart 1 on page 41330 illustrates the assessment schedule for an inpatient stay in an IRF; the admission assessment time period is the first 3 days of the patient's IRF hospitalization, with day 3 being the admission assessment reference date, day 4 being the admission assessment completion date, and day 10 being the encoded by date. Chart 2 on page 41331 illustrates the application of the general rule for a patient who is admitted on July 3, 2002. The admission assessment time period would be July 3, 4, and 5, the admission assessment reference date July 5, the admission assessment completion date July 6, and the admission assessment encoded by date July 12, 2002.

The preamble also explains the admission assessment time period, admission assessment reference date, the admission assessment completion date, and the admission assessment encoded by date for the case in which the beneficiary has an interrupted stay during the admission assessment time period. As defined in § 412.602, an interrupted stay means a stay at an inpatient rehabilitation facility during which a Medicare inpatient is discharged from the inpatient rehabilitation facility and returns to the same inpatient rehabilitation facility within three consecutive calendar days. The duration of the interruption of the stay of three consecutive calendar days begins with the day of discharge from the inpatient rehabilitation facility and ends on midnight of the third day. However, the August 7, 2001, final rule contains some technical errors in illustrating the assessment process for a patient who has an interruption in a stay which occurs during the admission assessment time period.

On page 41331 of the preamble of the final rule, we describe the process of shifting the dates associated with the admission assessment schedule when an inpatient rehabilitation stay has been interrupted. In the example on page 41331, the patient's stay begins with an admission to the IRF on July 3, 2002. However, the stay is interrupted on July 4, 2002, and the patient returns to the IRF before midnight of July 6, 2002. The example on page 41331 incorrectly states that, due to this interruption in the hospital stay, the admission assessment time period would be shifted to July 6, 7, and 8. The example is incorrect because the three calendar days to observe the patient during the admission assessment time period must include July 3, because July 3 is the day of admission to the IRF. As stated previously, the day of admission to the IRF is the first day of the admission assessment time period. Because July 3 is day 1 of the admission assessment time period, then July 6, the date when the patient returns to the IRF after the interruption in the stay, is day 2 of the admission assessment time period. Accordingly, July 7 is day 3 of the admission assessment time period.

The admission assessment reference date, completion date, and encoded by date are based upon the admission assessment time period. Because the final rule example regarding the shifting of the admission assessment time period is incorrect, it follows that the admission assessment reference date of July 8, the admission assessment completion date of July 9, and the encoded by date of July 15, 2002 included in the example are also incorrect. The correct admission assessment time period, as a result of an interruption in the stay as described in the final rule example, is July 3, 6, and 7, with July 7 being the assessment reference date, July 8 the completion date, and July 14, 2002, the encoded by date.

If, for example, the patient was admitted to the IRF on July 3, but the stay is interrupted on July 5, 2002, and the patient returns to the IRF before midnight of July 7, 2002, the admission assessment time period dates would be July 3, 4, and 7. In this case, the admission assessment reference date would be July 7, the completion date would be July 8, and the encoded by date would be July 14, 2002.

Section 412.610, “Assessment schedule,” specifies the general rules for the admission assessment and the discharge assessment. As stated previously, the admission assessment time period is a span of time that covers calendar days 1 through 3 of the patient's current Medicare Part A fee-for-service hospitalization. The first day of the patient's IRF stay is counted as day 1 of the patient assessment schedule, with day 3 of the hospitalization being the admission assessment reference date. Section 412.610 specifies the general rule that the discharge assessment reference date is the day the first of the following two events occurs: (1) The patient is discharged from the IRF; or (2) the patient stops being furnished Medicare Part A fee-for-service IRF services. The discharge assessment time period includes the discharge assessment reference date and the two calendar days prior to the discharge assessment reference date.

Applying the admission assessment general rule means that a patient admitted on October 1, 2002, and discharged on October 4, 2002, would have an admission assessment time period of October 1, 2, and 3 (the first three days of the current Medicare Part A IRF hospitalization), with October 3 being the admission assessment reference date. Applying the discharge assessment general rule means that October 4, 2002 (the day the patient is discharged from the IRF) is the discharge assessment reference date, with October 2 and 3 (the two calendar days prior to the discharge assessment reference date) being part of the discharge assessment time period.

In this situation, the admission assessment time period and the discharge assessment time period both include October 2 and 3. However, on page 41327, we incorrectly stated that “In addition, for the discharge assessment, in no case will the discharge assessment time period include a calendar day(s) prior to the admission assessment reference calendar date or the admission assessment reference calendar date itself.” That statement is incorrect because there will be situations, such as when a patient's IRF stay is only 4 days in length, when it would be impossible to apply the admission assessment and discharge assessment general rules and not include the admission assessment reference date itself, or another day of the admission assessment time period, as part of the discharge assessment time period. Consequently, a patient who has a very short IRF stay may have a discharge assessment time period that includes (that is, overlaps) a calendar day(s) prior to the admission assessment reference calendar date or the admission assessment reference calendar date itself.

In order to correct for this overly broad statement, previously quoted from page 41327, that makes application of both the admission assessment and discharge assessment general rules impossible when a short stay causes the time periods for the admission and discharge assessments to overlap, we are adding, after the word “itself”, the phrase, “, unless a patient's IRF length of stay causes these assessment periods to overlap.”

Under § 412.610, patient data are collected on the same IRF patient assessment instrument two times. The first time is during the admission assessment time period, and the second time is during the discharge assessment time period. Under § 412.614(c), we require that both the admission and discharge assessment data be transmitted together only one time after the patient is discharged. Because the discharge date is the sole basis for determining when the transmission of the data must occur, an event, such as an interruption of a stay, that occurs before the actual day of discharge will not affect any of the discharge assessment schedule dates, including the date to transmit the data. However, on page 41331 of the preamble and in § 412.618(c) on page 41390, we incorrectly stated that if an interruption of a stay occurred for (that is, during) the admission assessment time period, the patient assessment instrument transmitted by date would be shifted forward. We are correcting the statement on page 41331 by removing the phrase “and patient assessment instrument transmitted by date”, because an interruption of the stay, which occurs before the discharge date, has no effect on the “transmitted by date.” A corresponding correction to the regulations text at § 412.618(c) will be addressed in the next section of this correcting amendment.

As stated on page 41331 and § 412.602 of the final rule, a discharge of a Medicare patient occurs when—(1) the patient is formally released; (2) the patient stops receiving Medicare-covered Part A inpatient rehabilitation services; or (3) the patient dies in the inpatient rehabilitation facility. However, in defining a discharge, we inadvertently failed to account for situations where a patient stops receiving Medicare-covered Part A inpatient rehabilitation services, but meets the condition, under § 424.13(b), for continued hospitalization. Specifically, under § 424.13(b), a physician may certify or recertify the need for continued hospitalization if the physician finds that the patient could receive proper treatment in a skilled nursing facility (SNF) but no bed is available in a participating SNF. To account for situations where a patient meets the requirement at § 424.13(b) in our definition of a discharge, on page 41331, we are correcting the condition “(2) the day on which the patient ceases to receive Medicare-covered Part A inpatient rehabilitation services” by adding “unless the patient qualifies for continued hospitalization under § 424.13(b) of the regulations.” A corresponding correction to the regulations text at § 412.602 will be addressed in the next section of this correcting amendment.

The example on page 41367 of the preamble reflects an incorrect amount ($20,033.81) for the Federal Prospective Payment amounts associated with CMG 0111 (without comorbidities). Inserting the correct amount from Table 2 of the final rule ($19,071.89), the corrected adjusted payment for Facility A will be $24,133.91 and the corrected adjusted payment for Facility B will be $24,990.08. In addition, the line after the subtotal is incorrectly labeled as “DSH adjustment” and should be labeled “LIP adjustment” to indicate an adjustment for low-income patients as referred to throughout the final rule.

We also found and corrected other typographical errors.

1. On page 41327, third column; third full paragraph, in line 17 from the bottom of the page, after the word “itself” add the following text: “, unless a patient's IRF length of stay causes these assessment periods to overlap.”

2. On page 41331, in the first column, in the next to last line add the word “and” before the word “patient”.

3. On page 41331 in the first column, in the last line, and continuing in the second column, first and second lines, remove the following text, “and patient assessment instrument transmitted by date”.

4. On page 41331, in the second column, line 19, the date “July 6” is corrected to read “July 3”.

5. On page 41331, second column, line 20, the date “July 7” is corrected to read “July 6” and the date “July 8” is corrected to read “July 7”.

6. On page 41331, second column, line 27, the date “July 8” is corrected to read “July 7”.

7. On page 41331, second column, lines 29 to 30, the date “July 9” is corrected to read “July 8”.

8. On page 41331, second column, lines 32 to 33, the date “July 15, 2002” is corrected to read “July 14, 2002”.

9. On page 41331, third column, line 7, after the phrase “(2) the day on which the patient ceases to receive Medicare-covered Part A inpatient rehabilitation services”, add the phrase, “unless the patient qualifies for continued hospitalization under § 424.13(b) of the regulations”.

10. On page 41350, third column, line two, remove the number “191”.

11. On page 41367, replace the label “DSH Adjustment” with “LIP Adjustment” and replace the values in the table labeled “Examples of Computing a Facility's Federal Prospective Payment” with the following:

12. On page 41367, first column, second paragraph from the bottom, the dollar amount of “$24,208.73” is corrected to read “$24,133.91” and the dollar amount of “$25,067.56” is corrected to read “$24,990.08”.

As stated in the previous section of this correcting amendment, we inadvertently failed to account for a patient that stops receiving Medicare-covered Part A inpatient rehabilitation services, but meets the condition, under § 424.13(b), for continued hospitalization in defining a discharge in § 412.602 of the final rule. Specifically, under § 424.13(b), a physician may certify or recertify the need for continued hospitalization if the physician finds that the patient could receive proper treatment in a skilled nursing facility (SNF) but no bed is available in a participating SNF. To account for a patient who meets the requirement at § 424.13(b), we are correcting the second definition of a discharge on page 41388 under § 412.602 to read as follows: “The patient stops receiving Medicare-covered Part A inpatient rehabilitation services, unless the patient qualifies for continued hospitalization under § 424.13(b) of this chapter”. This correction does not affect the criteria, under § 412.610(c)(2)(ii), to determine the discharge assessment reference date.

Our clearly stated intention in the preambles of both the November 3, 2000 proposed rule (65 FR 66304) and the final rule, was not to change the existing general criteria to be excluded from the acute care hospital prospective payment system (§ 412.22), or the specific criteria to be classified as an excluded rehabilitation hospital or rehabilitation unit (§§ 412.23, 412.25, 412.29, and 412.30) under subpart B of part 412 of the regulation. In § 412.604(b) on page 41388, we inadvertently failed to include reference to the general exclusion criteria under § 412.22 as a condition to be paid under the IRF PPS. In this document, we are correcting § 412.604(b) to state that subject to the special payment provisions of § 412.22(c), an inpatient rehabilitation facility must meet the general criteria of § 412.22 and the criteria to be classified as a rehabilitation hospital or rehabilitation unit set forth in §§ 412.23(b), 412.25, and 412.29 for exclusion from the inpatient hospital prospective payment systems specified in § 412.1(a)(1).

We are making several technical corrections to § 412.618(c), on pages 41390 to 41391, which describes the “Revised assessment schedule” when an interruption of a stay occurs. The corrections we are making to § 412.618(c) conform the policies regarding the assessment process for interrupted stays to those stated in the corrected preamble to the regulation text.

Section 412.618(c)(1) of the final rule states that, “If the interruption in the stay occurs before the admission assessment, the assessment reference date, completion dates, encoding dates, and data transmission dates for the admission and discharge assessments are advanced by the same number of calendar days as the length of the patient's interruption in the stay.” The phrase “occurs before the admission assessment” is incorrect because an interruption of a stay affects the admission assessment schedule only if the interruption occurs during, not before, the admission assessment time period. Specifically, an interruption of a stay that occurs “during the admission assessment time period” results in a shifting of the relevant assessment schedule dates. We are correcting the phrase “occurs before the admission assessment” to read “occurs during the admission assessment time period” to accurately reflect when an interruption in a stay affects the assessment schedule as indicated in our policy described in the corrected preamble. In addition, the phrase “data transmission dates” in § 412.618(c)(1) of the final rule is incorrect because, as discussed earlier in this correcting amendment, an interruption of a stay does not affect the date of transmitting the assessment data. Specifically, the date to transmit admission and discharge assessment data together is based solely on the day that the patient is discharged. Thus, an interruption of a stay will not impact the data transmission date. We are correcting § 412.618(c)(1) to remove the reference to the “data transmission dates” and, thus, conform the regulations text to the corrected preamble.

Section 412.618(c)(2) of the final rule states that, “If the interruption of the stay occurs after the admission assessment and before the discharge assessment, the completion date, encoding date, and data transmission date for the admission assessment are advanced by the same number of calendar days as the length of the patient's interruption in the stay.” Under § 412.610(c)(1), the admission assessment schedule can only be established after the admission assessment time period is known. If an interruption of a stay occurs after the admission assessment time period (and before the discharge assessment), the admission assessment schedule, which has already been established, cannot be revised, contrary to what was incorrectly indicated in § 412.618(c)(2) of the final rule. Since the situation specified in § 412.618(c)(2) would never result in a revised assessment schedule, we are correcting § 412.618 by eliminating § 412.618(c)(2).

In summary, to conform the regulations text to the policy in the corrected preamble, § 412.618(c)(2) is removed, and the regulations text in formerly designated paragraph (c)(1) becomes paragraph (c), “Revised assessment schedule.” The corrected text of § 412.618(c) reads, “If the interruption in the stay occurs during the admission assessment time period, the assessment reference date, completion date, and encoding date for the admission assessment are advanced by the same number of calendar days as the length of the patient's interruption in the stay.”

On page 41356 of the preamble of the final rule, we responded to a request to clarify how services during an interrupted stay would be paid if a beneficiary is discharged from the IRF to an acute care hospital. In our response to this comment, we stated that, under § 412.624(g), there would be no separate diagnostic related group (DRG) payment to the acute care hospital when the beneficiary is “discharged and returns to the same IRF on the same day”. However, § 412.624(g)(1) incorrectly states that this provision applies to a patient with an “interruption of one day or less”. Therefore, in order to conform the regulations text to the policy as stated in the preamble, we are correcting § 412.624(g)(1) to apply to a patient who is discharged and returns to the same IRF on the same day. Additionally, in our response to this comment, we correctly stated the policy in the preamble that if a beneficiary receives inpatient acute care hospital services, the acute care hospital can receive a DRG payment if the beneficiary is “discharged from the IRF and does not return to that IRF by the end of that same day”. However, § 412.624(g)(2) in the final rule incorrectly states that this provision applies to a patient with an “interruption of more than one day”. To conform the regulation text to the correction to § 412.624(g)(1) above and to the policy as stated in the preamble, we are correcting § 412.624(g)(2) to apply to a patient who is discharged and does not return to the same IRF on the same day.

We ordinarily publish a correcting amendment of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a correcting amendment such as this can take effect. We can waive this procedure, however, if we find good cause that a notice and comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporate a statement of finding and its reasons in the correcting amendment issued.

We find for good cause that it is unnecessary to undertake notice and public comment procedures because this correcting amendment does not make any substantive policy changes. This document makes technical corrections and conforming changes to the August 7, 2001 final rule. Therefore, for good cause, we waive notice and public comment procedures under 5 U.S.C. 553(b)(B).

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Associate Director finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

The Associate Director has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

This is a summary of a Commission's Order on Reconsideration in CC Docket No. 96-45 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 on Reconsideration, we address the requests to reconsider portions of the Commission's order modifying the Commission's rules for providing high-cost universal service support to rural telephone companies based on the proposals made by the Rural Task Force. Specifically, we amend our rules to provide that the amount of high-cost loop support available to rural carriers in 2002 should be adjusted to account for mid-2001 implementation of the rules adopted in the RTF Order, 66 FR 30080, June 5, 2001. In addition, we deny requests filed by the Coalition of Rural Telephone Companies, Competitive Universal Service Coalition, and Illinois Commerce Commission to reconsider certain elements of the RTF Order. We conclude that these petitioners have failed to present any new arguments that lead us to reconsider these issues.

2. As discussed in greater detail below, we amend our rules to provide that the amount of high-cost loop support available to rural carriers in 2002 should be adjusted to account for mid-2001 implementation of the rules adopted in the RTF Order. In addition, we deny the requests of RTC, CUSC, and Illinois Commission to reconsider other elements of the RTF Order. As part of our continuing assessment of support to rural areas, we intend to initiate a proceeding in the future to examine further issues related to the application of the universal service mechanisms to competitive ETCs.

3. NTCA Petition. We agree with NTCA that the Commission's rules for calculating a rural incumbent carrier's loop cost expense adjustment should be amended to take into consideration mid-year 2001 implementation of the adopted plan. The Commission based its estimate of the increase in rural carrier universal service funding on data submitted by the Rural Task Force. This data assumed that the adopted plan would be implemented as of January 1, 2001. As NTCA notes, due to July 1, 2001 implementation of the Rural Task Force plan, application of § 36.603(a) would result in 2002 support for rural carriers being calculated by adding the totals for the first half of 2001, during which the plan was not in effect, and the second half of 2001, during which the plan was in effect. We agree with NTCA that mid-year 2001 implementation will result in less support for eligible rural carriers in 2002 than intended by the Commission in adopting the Rural Task Force plan. This result would be compounded over five years.

4. We therefore amend § 36.603(a) of our rules by taking the uncapped support for 2000 and increasing it for 2001 and 2002 by the rural growth factor. Specifically, for the period of January 1, 2002, to December 31, 2002, the annual amount of the rural incumbent local exchange carrier portion of the nationwide loop cost expense adjustment shall not exceed the non-capped amount of the total rural incumbent local exchange carrier loop cost expense adjustment for calendar year 2000, multiplied times one plus the rural growth factor for 2001, which then shall be multiplied times one plus the rural growth factor for 2002. We believe this result is consistent with the Commission's intent in adopting the recommendations of the Rural Task Force. We direct USAC to take the administrative steps necessary to implement this rule amendment beginning in the third quarter of 2002, including the provision of retroactive support to any carrier that may qualify for such additional support as of January 1, 2002. Specifically, in addition to any other payments for which carriers qualify in the third quarter 2002, we further direct USAC to provide the additional rural high-cost support retroactively in third quarter 2002 to those carriers that qualify for such additional support pursuant to this rule amendment during first quarter 2002. Similarly, in addition to any other payments for which carriers qualify in the fourth quarter 2002, USAC shall provide the additional rural high-cost support retroactively in fourth quarter 2002 for those carriers that qualify for such additional support during second quarter 2002.

5. We do not address NTCA's request at this time to amend our rules to provide “safety valve” support for the first year of investment in acquired exchanges. The Commission intends to address this request at a later date.

6. RTC Petition. We deny the request of RTC to reconsider the Commission's determination to use a wireless mobile customer's billing address as the basis for determining the customer's location for purposes of delivering high-cost universal service support. Because universal service support is portable, competitive ETCs receive the same per-line high-cost support as the incumbent local exchange carrier for the lines that it serves in the high-cost areas of the incumbent local exchange carrier. It is therefore necessary to establish a reasonable means to identify customer locations in order to determine the support amounts for the competitive carrier. We find no new arguments in RTC's petition that persuade us to reconsider the Commission's decision on this issue.

7. We affirm that the use of the customer's billing address as a surrogate for actual service location is reasonable and the most administratively viable solution to this problem at this time. For example, as the Commission noted in the RTF Order, this approach eliminates the need to require many wireless mobile carriers to create a new database for purposes of universal service funding. The Commission addressed concerns similar to those raised in RTC's petition in the RTF Order, including the potential for arbitrage opportunities of the universal service mechanism. In so doing, the Commission acknowledged that this approach is not a perfect solution. Consistent with the Commission's conclusion in the RTF Order, we believe that sufficient safeguards are in place to alleviate those concerns. The Commission has specifically committed to taking enforcement action as appropriate for any such abuses. Moreover, the Commission has indicated that it will continue to monitor the reasonableness of using a customer's billing address as the surrogate for a wireless mobile customer's location for universal service purposes and may revisit this approach in the future.

8. RTC contends that the Commission's universal service rules are generally incompatible for calculating universal service support for wireless carriers. RTC effectively asks the Commission to modify certain of the universal service rules as they apply to wireless carriers and to initiate new proceedings to establish a cost mechanism for wireless carriers. These requests exceed the scope of the RTF Order. Many of the rules for which RTC seeks modification were adopted prior to the RTF Order and this order is limited to those issues raised on reconsideration of the RTF Order. RTC's petition is therefore more appropriately characterized as a request for rulemaking. As part of our continuing assessment of support to rural areas, we intend to initiate a proceeding in the future to examine further issues related to the application of universal service mechanisms to competitive ETCs.

9. CUSC Petition. We deny the request of CUSC to reconsider the requirement adopted in the RTF Order that state commissions must file annual certifications with the Commission to ensure that carriers use universal service support “only for the provision, maintenance and upgrading of facilities and services for which the support is intended.” We therefore deny CUSC's request to permit all competitive ETCs to self-certify their compliance with section 254(e). Specifically, we disagree with CUSC's contention that self-certification should be extended from carriers that are not subject to state jurisdiction pursuant to section 214(e)(6) to all competitive ETCs due to the fact that competitive ETCs may not be subject to state rate regulation. The self-certification process established for carriers not subject to the jurisdiction of a state commission recognized that, in limited instances, there is no state regulatory authority to ensure compliance with section 254(e). This is not the case for the majority of competitive ETCs. The Commission has previously concluded that state commissions have the principal responsibility in designating carriers as ETCs, including those carriers not subject to state rate regulation under section 332(c). We believe that state commissions that conduct ETC designations should also certify that such carriers are in compliance with section 254(e). It would be contrary to the principle of competitive neutrality to require certain classes of carriers subject to state ETC jurisdiction to receive state certification while allowing others to self-certify. Nor do we agree with CUSC's alternative suggestion that all ETCs be allowed to self-certify compliance with section 254(e). As the Commission concluded in adopting this requirement, we believe that the state certification process provides the most reliable means of determining whether carriers are using support in a manner consistent with section 254(e).

10. We also deny the request of CUSC to reconsider the Commission's decisions regarding disaggregation and targeting of universal service support. We disagree with CUSC's suggestion that, whenever a rural incumbent carrier study area is disaggregated for purposes of targeting funding, the study area should automatically be disaggregated for purposes of ETC designation as well. In the case of an area served by a rural telephone company, section 214(e)(5) defines the competitive ETC's designated service area as the rural telephone company's study area unless and until the Commission and states establish a different definition of service area. We believe that granting CUSC's request in this proceeding would be inconsistent with the statute.

11. We also disagree with CUSC's assertion that the disaggregation rules adopted in the RTF Order violate the principle of competitive neutrality because they allow only rural incumbent carriers to select from a range of disaggregation options. Specifically, CUSC contends that competitive ETCs should have the same opportunity to initiate study area disaggregation as the rural carrier. We find that the disaggregation and targeting approach adopted in the RTF Order achieves a reasonable balance between rural carriers' need for flexibility and the goal of encouraging competitive entry. The Commission recognized in the RTF Order that some incumbent carriers may choose a disaggregation path based on anti-competitive reasons. For that reason, the Commission concluded that a state commission may require, on its own motion, upon petition by an interested party, or upon petition by the rural incumbent carrier, modification to the disaggregation and targeting of support under the selected path. We affirm the Commission's conclusion that state commissions have the capability to safeguard against anti-competitive manipulation of the disaggregation and targeting of support that could occur with such requests. Competitive ETCs and other interested parties will have an opportunity to participate in this process. We therefore find no basis to conclude that the disaggregation process is inconsistent with the principle of competitive neutrality.

12. We also decline to adopt CUSC's request that the Commission adopt specific rules governing how the amounts of support in each sub-zone under Path Three (self-certification) are to be calculated in order to ensure support amounts are cost justified. We reaffirm the Commission's prior decision to permit carriers flexibility in how they disaggregate support. We are not persuaded on the record before us that permitting carriers to self-certify to a disaggregation path creates too great an opportunity for the incumbent carrier to manipulate support in an anti-competitive manner. A self-certified disaggregation plan under Path 3 is subject to complaint by interested parties before the appropriate regulatory authority. Moreover, the state or appropriate regulatory authority may require on its own motion at any time the disaggregation of support in a different manner. We believe such regulatory oversight will sufficiently safeguard against the anti-competitive manipulation of the disaggregation and targeting of support.

13. Finally, at this time, we decline to adopt CUSC's request that USAC publish and make available on its website additional information relating to the geographic boundaries of wire centers and study areas and the amount of support available in each geographic location. In the RTF Order, the Commission required rural incumbent local exchange carriers to submit to USAC maps in which the boundaries of the designated disaggregation zones of support are clearly specified, which USAC will make available for public inspection. In addition, when submitting information in support of self-certification, an incumbent carrier must provide USAC with publicly available information that allows competitors to verify and reproduce the algorithm used to determine zone support levels. We also note that USAC makes publicly available in its quarterly funding report detailed information relating to the high-cost support received by carriers in each study area. We recognize that the availability of such information is important to competitors in assessing potential entry. We believe that sufficient information is available to competitors under our existing rules and policies and will continue to be available following requests for disaggregation of study areas by rural incumbent carriers. The Commission will, however, continue to monitor this situation and take appropriate steps as necessary.

14. Illinois Commission Petition. We deny the request of the Illinois Commission to reconsider the plan adopted in the RTF Order for providing high-cost universal service support to rural carriers for the next five years due to concerns relating to the sufficiency of the evidentiary record. Specifically, we disagree with the Illinois Commission that the funding increases adopted in the RTF Order are excessive and not based upon an adequate record.

15. Based upon the extensive record developed in this proceeding, the Commission used its expertise and informed judgment to formulate an interim plan for providing high-cost universal service support to rural carriers. That plan was based largely on the recommendations of the Rural Task Force. After exhaustive deliberations and considerable effort, including six white papers, the Rural Task Force submitted its Recommendation to the Joint Board on September 29, 2000. After reviewing the Rural Task Force's proposal, the Joint Board submitted its recommendations to the Commission on December 22, 2000. The Commission carefully reviewed these recommendations, including comments filed by the Illinois Commission and others, in adopting the interim plan for rural carriers. In balancing the competing interests presented in this proceeding, the Commission considered both the adequacy of support to rural carriers and the burden on contributors. In concluding that the modified embedded mechanism for rural carriers strikes an appropriate balance, the Commission rejected the contention that no increase in the current high-cost support levels was warranted.

16. We affirm the Commission's conclusion that it was reasonable to modify the high-cost loop support levels for rural carriers established in 1997 to account for changes in costs and technology, and to ensure that rural carriers can maintain existing facilities until such time as a long-term plan is adopted. For example, the Commission's decision to increase high-cost loop support to rural carriers by “rebasing” the indexed fund cap and the corporate operations expense limitation as if the indexed cap had not been in effect for the calendar year 2000 was reasonable because more than seven years had passed since the Commission originally implemented the indexed cap on high-cost loop support. The Commission concluded that the indexed cap on the high-cost loop fund increasingly limited the amount of high-cost loop support for rural carriers. In addition, the Commission noted that, even with these changes any increase in the universal service contribution factor as a result of this plan would be modest. In the RTF Order, the Commission concluded that no commenter proffered any specific evidence that the adopted plan would provide support that is excessive. The Illinois Commission petition contains no such empirical evidence to support this contention. We therefore decline to now reconsider the Commission's conclusions.

17. We also decline to reconsider the state certification requirement to ensure that carriers are using support in a manner consistent with section 254(e). As discussed, we do not agree with the Illinois Commission that excessive funding is provided to rural carriers. We therefore are not persuaded by the argument that any such state certification requirement is unworkable due to excessive funding for universal service purposes. Given that states generally have primary authority over carriers' intrastate activities, we reiterate the Commission's determination that the state certification process provides the most reliable means of determining whether carriers are using support for its intended purpose in a manner consistent with section 254(e).

18. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA) and found to impose no new or modified reporting and/or recordkeeping requirements or burdens on the public.

19. In compliance with the Regulatory Flexibility Act (RFA), this Supplemental Final Regulatory Flexibility Analysis (SFRFA) supplements the Final Regulatory Flexibility Analysis (FRFA) included in the RTF Order, to the extent that changes to that Order adopted here on reconsideration require changes in the conclusions reached in the FRFA. As required by the RFA, the FRFA was preceded by an Initial Regulatory Flexibility Analysis (IRFA) incorporated in the Further Notice of Proposed Rulemaking, which sought public comment on the proposals in the Further Notice.

20. Section 254 of the Communications Act of 1934, as amended by the 1996 Act, requires the Commission to promulgate rules to preserve and advance universal service support. In the RTF Order, the Commission adopted interim rules for determining high-cost universal service support for rural telephone companies based upon the modified embedded cost mechanism proposed by the Rural Task Force. The Commission based its estimate of the appropriate funding for rural carriers on data submitted by the Rural Task Force. This data assumed that the adopted plan would be implemented as of January 1, 2001. In this Order, we amend § 36.603(a) of our rules to reflect the fact that July 1, 2001 implementation of the rules, as adopted in the RTF Order, would result in less support being provided than intended by the Commission.

21. No comments were submitted in response to the IRFA or FRFA. On reconsideration, however, NTCA noted that clarification of the § 36.603(a) of the Commission's rules was required to ensure that mid-year 2001 implementation did not result in less support being provided for rural incumbent carriers in 2002 than intended by the Commission in adopting the Rural Task Force plan.

22. In the FRFA at paragraphs 218-229 of the RTF Order , we described and estimated the number of small entities that would be affected by the new universal service rules for rural carriers. The rule amendment adopted herein may apply to the same entities affected by the rules adopted in that order. We therefore incorporate by reference paragraphs 218-229 of the RTF Order .

23. The rule amendment adopted in this Order contains no new reporting, recordkeeping, or other compliance requirements.

24. In the RTF Order , we described the steps taken to minimize the significant economic impact on small entities consistent with the stated objectives associated with the adopted plan for providing high-cost support to rural carriers. Because many of the same issues are presented in this Order, we incorporate by reference paragraphs 233-235 of the RTF Order . In this Order, we amend § 36.603(a) of our rules consistent with the intent of the Commission in adopting the Rural Task Force plan for providing high-cost universal service support to rural carriers for an interim period of five years. That plan was predicated on funding estimates for rural incumbent carriers based on January 1, 2001 implementation. The adopted rule, however, established July 1, 2001, as the implementation date. The rule amendment adopted herein rectifies this inconsistency, and thereby ensures that appropriate funding is provided to rural incumbent local exchange carriers and competitive ETCs, many of whom may qualify as small entities, over the next five years. As discussed, the alternative option of denying the request for reconsideration on this issue was considered and deemed to be inconsistent with Commission's intent in adopting the Rural Task Force's plan.

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

26. It is ordered that, pursuant to the authority contained in sections 1-4, 214, and 254 of the Communications Act of 1934, as amended, 47 U.S.C 151-154, 214, and 254, and § 1.429 of the Commission's rules, the above captioned petitions for reconsideration are denied, to the extent discussed herein.

27. The petition for reconsideration filed by National Telephone Cooperative Association on July 5, 2001 is granted in part, to the extent discussed herein.

28. Part 36 of the Commission's rules, 47 CFR part 36, is amended as set forth, effective July 31, 2002.

29. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This final rule amends the regulations on the organization, delegation of powers and duties within the National Highway Traffic Safety Administration (NHTSA), and amends the succession to the Administrator to conform to the new organizational structure. This final rule amends NHTSA's organizational structure to enable NHTSA to achieve its mission more effectively and efficiently.

These amendments relate solely to changes in the organizational structure and the placement of the delegations of authority for various functions within the agency. They have no substantive effect. Notice and the opportunity for comment are therefore not required under the Administrative Procedure Act, and the amendments are effective immediately upon publication in the Federal Register . In addition, these amendments are not subject to Executive Order 12866, the Department of Transportation's regulatory policies and procedures, or the provisions for Congressional review of final rules in Chapter 8 of Title 5, United States Code.

The Anti Car Theft Act of 1992, Pub. L. 102-519, amended the law relating to the parts-marking of major component parts on designated high-theft vehicle lines and other motor vehicles. The Anti Car Theft Act amended the definition of “passenger motor vehicle” in 49 U.S.C. 33101(10) to include a “multipurpose passenger vehicle or light duty truck when that vehicle or truck is rated at not more than 6,000 pounds gross vehicle weight.” Since “passenger motor vehicle” was previously defined to include passenger cars only, the effect of the Anti Car Theft Act is that certain multipurpose passenger vehicle (MPV) and light-duty truck (LDT) lines may be determined to be high-theft vehicles subject to the Federal motor vehicle theft prevention standard (49 CFR part 541).

The purpose of the theft prevention standard is to reduce the incidence of motor vehicle theft by facilitating the tracing and recovery of parts from stolen vehicles. The standard seeks to facilitate such tracing by requiring that vehicle identification numbers (VINs), VIN derivative numbers, or other symbols be placed on major component vehicle parts. The theft prevention standard requires motor vehicle manufacturers to inscribe or affix VINs onto covered original equipment major component parts, and to inscribe or affix a symbol identifying the manufacturer and a common symbol identifying the replacement component parts for those original equipment parts, on all vehicle lines selected as high-theft.

The Anti Car Theft Act also amended 49 U.S.C. 33103 to require NHTSA to promulgate a parts-marking standard applicable to major parts installed by manufacturers of “passenger motor vehicles (other than light duty trucks) in not to exceed one-half of the lines not designated under 49 U.S.C. 33104 as high-theft lines.” Section 33103(a) further directed NHTSA to select only lines not designated under § 33104 of this title as high theft lines. NHTSA lists each of these selected lines in Appendix B to Part 541. Since § 33103 did not specify marking of replacement parts for below-median lines, the agency does not require marking of replacement parts for these lines. NHTSA published a final rule amending 49 CFR part 541 to include the definitions of MPV and LDT, and major component parts. See 59 FR 64164, [December 13, 1994.]

49 U.S.C. 33104(a)(3) specifies that NHTSA shall select high-theft vehicle lines, with the agreement of the manufacturer, if possible. Section 33104(d) provides that once a line has been designated as likely high-theft, it remains subject to the theft prevention standard unless that line is exempted under § 33106. Section 33106 provides that a manufacturer may petition to have a high-theft line exempted from the requirements of § 33104, if the line is equipped with an antitheft device as standard equipment. The exemption is granted if NHTSA determines that the antitheft device is likely to be as effective as compliance with the theft prevention standard in reducing and deterring motor vehicle thefts.

The agency annually publishes the names of the lines which were previously listed as high-theft, and the lines which are being listed for the first time and will be subject to the theft prevention standard beginning in a given model year. It also identifies those lines that are exempted from the theft prevention standard for a given model year under § 33104. Additionally, this listing identifies those lines (except light-duty trucks) in Appendix B to Part 541 that have theft rates below the 1990/1991 median theft rate but are subject to the requirements of this standard under § 33103.

On August 3, 2001, the final listing of high-theft lines for the MY 2002 vehicle lines was published in the Federal Register (66 FR 40622). The final listing identified four vehicle lines that were listed for the first time and became subject to the theft prevention standard beginning with the 2002 model year.

For MY 2003, the agency identified five new vehicle lines that are likely to be high-theft lines, in accordance with the procedures published in 49 CFR part 542. The new lines are the Honda Pilot, the Nissan Infiniti M45, the Subaru Baja, the Toyota Lexus GX 470 and the Toyota Matrix. The agency was also informed by General Motors that its Saturn SC vehicle line has been renamed the Saturn ION vehicle line beginning with the 2003 model year. In addition to these five vehicle lines, the list of high-theft vehicle lines includes all lines previously designated as high-theft and listed for prior model years.

Subsequent to publishing the MY 2002 final rule, the agency was informed by DaimlerChrysler, Inc., (Daimler/Chrysler) that its Jeep Cherokee vehicle line was replaced by the Jeep Liberty vehicle line beginning with the 2002 model year. Accordingly, Appendix A has also been amended to reflect these changes.

The list of lines that have been exempted by the agency from the parts-marking requirements of part 541 includes high-theft lines newly exempted in full beginning with MY 2003. The five vehicle lines newly exempted in full are the BMW (confidential nameplate) vehicle line which replaces its Z3 vehicle line, the General Motors Pontiac Grand Prix, the Isuzu Axiom, the Nissan Infiniti G35 and the Mazda 6 vehicle line. The vehicle lines listed as being subject to the parts-marking standard have previously been designated as high-theft lines in accordance with the procedures set forth in 49 CFR part 542. Under these procedures, manufacturers evaluate new vehicle lines to conclude whether those new lines are likely to be high theft. The manufacturer submits these evaluations and conclusions to the agency, which makes an independent evaluation; and, on a preliminary basis, determines whether the new line should be subject to the parts-marking requirements. NHTSA informs the manufacturer in writing of its evaluations and determinations, together with the factual information considered by the agency in making them. The manufacturer may request the agency to reconsider the preliminary determinations. Within 60 days of the receipt of these requests, the agency makes its final determination. NHTSA informs the manufacturer by letter of these determinations and its response to the request for reconsideration. If there is no request for reconsideration, the agency's determination becomes final 45 days after sending the letter with the preliminary determination. Each of the new lines on the high-theft list has been the subject of a final determination under either 49 U.S.C. 33103 or 33104.

The vehicle lines listed as being exempt from the standard have previously been exempted in accordance with the procedures of 49 CFR part 543 and 49 U.S.C. 33106.

Similarly, the low-theft lines listed as being subject to the parts-marking standard have previously been designated in accordance with the procedures set forth in 49 U.S.C. 33103.

Therefore, NHTSA finds for good cause that notice and opportunity for comment on these listings are unnecessary. Further, public comment on the listing of selections and exemptions is not contemplated by 49 U.S.C. Chapter 331.

For the same reasons, since this revised listing only informs the public of previous agency actions and does not impose additional obligations on any party, NHTSA finds for good cause that the amendment made by this notice should be effective as soon as it is published in the Federal Register .

NHTSA has analyzed this rule and determined that it is not “significant” within the meaning of the Department of Transportation's regulatory policies and procedures. The agency has also considered this notice under Executive Order 12866. As already noted, the selections in this final rule have previously been made in accordance with the provisions of 49 U.S.C. 33104, and the manufacturers of the selected lines have already been informed that those lines are subject to the requirements of 49 CFR part 541 for MY 2003. Further, this listing does not actually exempt lines from the requirements of 49 CFR part 541; it only informs the general public of all such previously granted exemptions. Since the only purpose of this final listing is to inform the public of actions for MY 2003 that the agency has already taken, a full regulatory evaluation has not been prepared.

The agency has also considered the effects of this listing under the Regulatory Flexibility Act. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. As noted above, the effect of this final rule is simply to inform the public of those lines that are already subject to the requirements of 49 CFR part 541 for MY 2003. The agency believes that the listing of this information will not have any economic impact on small entities.

In accordance with the National Environmental Policy Act of 1969, the agency has considered the environmental impacts of this rule, and determined that it will not have any significant impact on the quality of the human environment.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 12612, and it has been determined that this final rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

This final rule does not have a retroactive effect. In accordance with § 33118 when the Theft Prevention Standard is in effect, a State or political subdivision of a State may not have a different motor vehicle theft prevention standard for a motor vehicle or major replacement part. 49 U.S.C. 33117 provides that judicial review of this rule may be obtained pursuant to 49 U.S.C. 32909. Section 32909 does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

On April 3, 2002, FTA published a direct final rule (64 FR 15725) amending 49 CFR Part 659 by removing the term “accident” under this section and adding in its place the definition and term “major incident” to be effective July 2, 2002. This action was taken because FTA's review of the National Transit Database (NTD), as mandated by the Department of Transportation's FY 2000 Appropriations Act, resulted in revisions of the Safety and Security Module of the NTD “Reporting Manual for 2002”. FTA solicited input from NTD stakeholders, which include rail transit agencies reporting to State Oversight Agencies as required by the State Safety Oversight regulations.

FTA believes that two accident/incident reporting definitions would cause confusion, generate inconsistent data, and create an additional burden for rail transit reporters. FTA stated in the preamble of the direct final rule it had solicited input from NTD stakeholders, including rail transit agencies reporting to State Oversight Agencies. However, as noted by the Missouri Department of Economic Development, Division of Motor Carrier and Railroad Safety, FTA did not solicit input from it, a state agency directly responsible for safety oversight of transit agencies within the state.

FTA initially believed the rulemaking would not be controversial. Based on the adverse comment we agree that input from additional stakeholders is warranted. At this time, FTA will not replace the term “accident” with the term “major incident” in 49 CFR 659.5, 659.39, 659.41. FTA plans to publish a notice of proposed rulemaking in November 2002.

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of four species of whales (right whales, fin, humpback, and minke) due to incidental interaction with commercial fishing activities. The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP’s Dynamic Area Management (DAM) program (67 FR 1133). The DAM program provides specific authority for NMFS to temporarily restrict the use of lobster trap and anchored gillnet fishing gear in areas north of 40° N. lat. on an expedited basis to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap and anchored gillnet gear for a 15-day period, and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On June 18, 2002, NMFS Aerial Survey Team reported a sighting of 75 right whales, 45 in the proximity of 41° 21′ N lat. and 69° 17′ W long. and 30 in the proximity of 41° 21′ N latitude and 69° 01′ W longitude. These positions lie east of Cape Cod, Massachusetts, in an area called the Great South Channel.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above and additional data regarding current and historic right whale sightings. Through this action, NMFS restricts lobster trap and gillnet gear set in the waters bounded by:

41°48′ N, 69°44′W (NW Corner)

41°48′ N, 68°25′ W

40°54′ N, 68°25′W

40°54′ N, 69°06′ W (SW Corner)

The mandatory restrictions for the portion of the DAM zone east of the western boundary of the Outbound Boston Harbor shipping lanes are as follows: All anchored gillnet and lobster trap gear must be removed from these waters.

In addition, NMFS requests the voluntary removal of all lobster trap and anchored gillnet gear in the waters bounded by:

41°48′ N, 69°51′ W (NW Corner)

41°48′ N, 69°44′ W

40°54′ N, 69°06′ W

40°54′ N, 69°51′ W (SW Corner)

The voluntary restrictions for this portion of the DAM zone west of the western boundary of the Outbound Boston Harbor shipping lanes are as follows: voluntary removal of all lobster trap and gillnet gear from these waters. Furthermore, NMFS asks lobster trap and gillnet fishermen not to set any new gear in this entire area during the 15-day alert period. The restrictions will be in effect beginning at 0001 hours July 1, 2002, through 2400 hours July 15, 2002, unless terminated sooner or extended by NMFS, through another notification in the Federal Register . The restrictions, both mandatory and voluntary, will be announced to state officials, fishermen, Atlantic Large Whale Take Reduction Team (ALWTRT) members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon filing with the Federal Register.

In accordance with section 118(f)(9) of the MMPA, the AA has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

This action falls within the scope of alternatives and impacts analyzed in the Final EA prepared for the ALWTRP’s DAM program. Further analysis under the National Environmental Policy Act (NEPA) is not required.

Providing prior notice and an opportunity for public comment on this action would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. To meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. The criteria were triggered with respect to this rule on June 18, 2002. If NMFS were to provide notice and an opportunity for public comment prior to the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Nevertheless, NMFS recognizes the need for fishermen to have time to remove their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective beginning at 0001 hours July 1, 2002, through 2400 hours July 15, 2002. NMFS will also endeavor to provide notice of this action to fishermen through other means as soon as possible.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS′ conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001, the Assistant Secretary for Intergovernmental and Legislative Affairs, DOC, provided notice of the DAM program to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rule implementing the DAM program. A copy of the federalism Summary Impact Statement for that final rule is available upon request (see ADDRESSES ).

This rule has been determined to be not significant under Executive Order 12866.

Salmon fisheries in the EEZ off Alaska are managed pursuant to the FMP prepared by the North Pacific Fishery Management Council (Council) and approved and implemented by the Secretary under authority of the Magnuson-Stevens Fishery Conservation and Management Act. The original title of the salmon FMP was the “Fishery Management Plan for the High Seas Salmon Fishery off the Coast of Alaska East of 175 Degrees East Longitude.”

Over time, the international regime affecting salmon fisheries changed and the Council revisited its salmon management policies. In 1989, the Council adopted an amendment to the FMP (Amendment 3) which, among other things, changed the title of the FMP to, “Fishery Management Plan for the Salmon Fisheries in the EEZ off the Coast of Alaska.” The Secretary approved Amendment 3 to the FMP in 1990, and published implementing rules on November 15, 1990 (55 FR 47773).

NMFS has discovered that regulations implementing Amendment 3 did not include the new title of the FMP. This change should have been included in the 1990 regulatory changes implementing Amendment 3 but was not due to oversight. No public comment was received on these or any of the other changes made by Amendment 3. Subsequent consolidation of all Federal fishery regulations off Alaska pursuant to President Clinton’s Regulatory Reform Initiative did not correct the error (62 FR 19686, April 23, 1997).

This action corrects this error by changing the title of the FMP as it appears in regulations codified at 50 CFR part 679 to be consistent with the FMP as amended and approved by the Secretary. This action will not have any substantive regulatory effect.

This action changes the title of the salmon FMP, a non-discretionary technical change with no substantive effects. Therefore, the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B), as such procedure would be unnecessary. Because prior notice and opportunity for comment is not required for this action by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are not applicable.

For the reasons set out in the preamble, 50 CFR part 679 is amended as follows: