Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear reactor power sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license, publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of dry storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241), that approved the Holtec International HI-STORM 100 cask design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance Number (CoC No.) 1014.

On July 3, 2001, and as supplemented on August 13 and 17, and October 5, 12, and 19, 2001, the certificate holder, Holtec International, submitted an application to the NRC to amend CoC No. 1014 to permit a part 72 licensee to: (1) Add four new multipurpose canisters—three for pressurized water reactor fuel and one for boiling water reactor fuel; (2) add new containers for damaged fuel; (3) add the HI-STORM 100S overpack and the 100A and 100SA high-seismic anchored overpacks; (4) allow the storage of high-burnup fuel; (5) delete the Technical Specifications for special requirements for the first systems in place and for training requirements and relocate these requirements to the main body of CoC 1014; and (6) allow the storage of selected nonfuel hardware. The amendment also will utilize revised thermal analysis tools to include natural convection heat transfer, revise the helium backfill requirements to allow a helium density measurement to be used, allow a helium drying system rather than the existing vacuum drying system, and require soluble boron during canister loading for certain higher enriched fuels. In addition, modifications have been made to Conditions 1.a., 1.b., 2, 3, 5, 9, 10, and 11 of the CoC; Sections 3.0 and 5.0 of Appendix A to the CoC; and Sections 1.0, 2.0, and 3.0 of Appendix B to the CoC to reflect the changes. No other changes to the Holtec International HI-STORM 100 cask system design were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there is still reasonable assurance that public health and safety and the environment will be adequately protected.

This rule revises the Holtec International HI-STORM 100 cask design listing in § 72.214 by adding Amendment No. 1 to CoC No. 1014. The amendment consists of changes to the Technical Specifications as described above. The particular Technical Specifications that are changed are identified in the NRC staff's Safety Evaluation Report (SER) for Amendment 1.

The NRC published a direct final rule (67 FR 14627; March 27, 2002) and the companion proposed rule (67 FR 14662) in the Federal Register to revise the Holtec International HI-STORM 100 cask system listing in 10 CFR 72.214 to include Amendment 1 to the CoC. The comment period ended on April 26, 2002. Three comment letters were received on the proposed rule. One comment was considered to be significant and adverse and warranted withdrawal of the direct final rule. A notice of withdrawal was published in the Federal Register on June 7, 2002; 67 FR 39260. Additionally, the NRC staff made minor editorial changes, in response to the two other comment letters, to Appendix B to CoC 1014, for the HI-STORM 100 cask system.

The NRC finds that the amended Holtec International HI-STORM 100 cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of part 72. Thus, use of the Holtec International HI-STORM 100 cask system, as approved by the NRC, will continue to provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the Holtec International HI-STORM 100 cask system under the general license in 10 CFR part 72, Subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on July 15, 2002. Single copies of the CoC and SER are available for public inspection and/or copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD.

The NRC received three comment letters on the proposed rule. The comments included the State of Illinois and two from the applicant (Holtec International).

Minor changes were made to Appendix B to the CoC to correct several inconsistencies and a typographical error. The SER was not changed as a result of public comments. A review of the comments and the NRC staff's responses follow:

Comment: One commenter suggested editorial changes to Appendix B of the CoC. These changes include a correction to Table 2.1-1 where the term “water displacement guide tube plugs” should be used rather than the incorrect term “water displacement rod guide tubes” and a typographical error in Table 2.1-3.

Response: The NRC staff agreed with the comments. The suggested changes have been made to Appendix B.

Comment: One commenter raised concerns with the provisions in the draft amended certificate that would allow licensees to store certain items of nonfuel hardware with the spent fuel in the cask. The commenter assumed that this nonfuel hardware was Greater-than-Class-C (GTCC) waste and noted that the NRC, in a recent rulemaking, had prohibited commingling of GTCC waste and spent fuel in the same cask except on a case-by-case basis. The commenter's concerns were focused on (1) the storage of GTCC waste commingled with the fuel, (2) the possibility of adverse interactions between the chemical elements and compounds in the nonfuel hardware and the fuel as well as the material components of the cask, and (3) the absence of documentation of NRC's analysis and criteria to accept storage of the nonfuel hardware.

Response: The NRC disagrees with the comment. First, under 10 CFR 72.3, spent fuel is defined to include “the special nuclear material, byproduct material, source material, and other radioactive materials associated with fuel assemblies.” The nonfuel hardware included burnable poison rod assemblies, thimble plug devices, control rod assemblies, axial power shaping rods, wet annular burnable absorbers, rod cluster control assemblies, control element assemblies, water displacement guide tube plugs, and orifice rod assemblies. These nonfuel hardware items permitted to be stored in the cask by this amendment are “other radioactive materials associated with fuel assemblies.” As explained in the GTCC waste rule, 1 the NRC believes that appropriate interim storage for these nonfuel components is with the associated spent fuel. However, with respect to GTCC waste that is not integral to spent fuel assemblies, the NRC concluded that this waste should not be stored in the same cask with spent fuel and that storing this waste would only be allowed on a case-by-case basis after a thorough analysis of possible adverse interactions between the materials in these components and the materials in the cask.

Second, materials interaction between spent fuel and radioactive materials associated with fuel assemblies was considered in the definitions at 10 CFR 72.3 and in the recent rulemaking associated with Interim Storage for Greater Than Class C Waste at 66 FR 51823, and the comment provided no new information suggesting a need for reconsideration of this issue in this rulemaking. From basic corrosion principles, in order for galvanic corrosion/chemical reactions to occur between the spent fuel, the confinement boundary, and nonfuel hardware, an electrolyte is needed (water) and the components must be fairly far apart from one another on the galvanic series. The NRC staff approved the storage of the nonfuel hardware because the cask is dry, backfilled with an inert gas ( i.e., no electrolyte is present), and the materials are not at the extreme end of the galvanic series from the spent fuel.

Third, in documenting the NRC's review findings and conclusions, it is neither practical nor appropriate to specify each detail considered in the staff's determination of acceptability. Rather, the documentation focuses on the safety and risk significant factors of the cask's overall performance in areas such as structural integrity, confinement boundary integrity, fuel cladding integrity, radiation shielding, criticality safety, heat removal, and operations and maintenance during normal and accident conditions. Although materials interactions with the nonfuel hardware identified in the comment were considered for acceptability in dry cask storage systems, they do not present conditions that are significant enough to warrant documentation in the SER.

Certificate No. 1014 is revised by adding the effective date of the initial certificate and the effective date of Amendment Number 1.

The NRC finds that good cause exists to waive the 30-day deferred effective date provisions of the Administrative Procedure Act (5 U.S.C. 553(d)). The primary purpose of the delayed effective date requirement is to give affected persons; e.g., licensees, a reasonable time to prepare to comply with or take other action with respect to the rule. In this case, the rule does not require any action to be taken by licensees. The regulation allows, but does not require, use of the amended Holtec International HI-STORM 100 cask system for the storage of spent nuclear fuel. The amended Holtec International HI-STORM 100 cask system meets the requirements of 10 CFR part 72, is ready to be used, and, as approved by the NRC, will continue to provide adequate protection of public health and safety and the environment.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The National Technology Transfer Act of 1995 (Public Law 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is amending the Holtec International HI-STAR 100 cask system within the list of NRC-approved cask systems for spent fuel storage in 10 CFR 72.214. This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

Under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule is not a major Federal action significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. This final rule amends the CoC for the Holtec International HI-STORM 100 cask system within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment modifies the present cask system design to: (1) Add four new multipurpose canisters—three for pressurized water reactor fuel and one for boiling water reactor fuel; (2) add new containers for damaged fuel; (3) add the HI-STORM 100S overpack and the 100A and 100SA high-seismic anchored overpacks; (4) allow the storage of high-burnup fuel; (5) delete the Technical Specification for special requirements for the first systems in place and for training requirements and relocate these requirements to the main body of CoC 1014; and (6) allow the storage of selected nonfuel hardware. The amendment also utilizes revised thermal analysis tools to include natural convection heat transfer, revises the helium backfill requirements to allow a helium density measurement to be used, allows a helium drying system rather than the existing vacuum drying system, and requires soluble boron during canister loading for certain higher enriched fuels. In addition, modifications have been made to Conditions 1.a., 1.b., 2, 3, 5, 9, 10, and 11 of the CoC; Sections 3.0 and 5.0 of Appendix A to the CoC; and Sections 1.0, 2.0, and 3.0 of Appendix B to the CoC to reflect the changes. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1F23, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6219, e-mail jmm2@nrc.gov.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0132.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in 10 CFR 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in 10 CFR part 72, subpart L. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to Part 72 that approved the Holtec International HI-STORM 100 cask design by adding it to the list of NRC-approved cask designs in § 72.214. On July 3, 2001, and as supplemented on August 13 and 17, and October 5, 12, and 19, 2001, the certificate holder, Holtec International, submitted an application to the NRC to amend CoC No. 1014 to permit a part 72 licensee to: (1) Add four new multipurpose canisters—three for pressurized water reactor fuel and one for boiling water reactor fuel; (2) add new containers for damaged fuel; (3) add the HI-STORM 100S overpack and the 100A and 100SA high-seismic anchored overpacks; (4) allow the storage of high-burnup fuel; (5) delete the Technical Specifications for special requirements for the first systems in place and for training requirements and relocate these requirements to the main body of CoC 1014; and (6) allow the storage of selected nonfuel hardware. The amendment also will utilize revised thermal analysis tools to include natural convection heat transfer, revise the helium backfill requirements to allow a helium density measurement to be used, allow a helium drying system rather than the existing vacuum drying system, and require soluble boron during canister loading for certain higher enriched fuels. In addition, modifications will be made to Conditions 1.a., 1.b., 2, 3, 5, 9, 10, and 11 of the CoC; Sections 3.0 and 5.0 of Appendix A to the CoC; and Sections 1.0, 2.0, and 3.0 of Appendix B to the CoC to reflect the changes.

The alternative to this action is to withhold approval of this amended cask system design and issue a site-specific license to each licensee. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption or a site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with NWPA direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees.

This final rule will eliminate the above problems and is consistent with previous Commission actions. Further, this final rule will have no adverse effect on public health and safety. This final rule has no significant identifiable impact on or benefit to other Government agencies.

Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Holtec International. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

The air data computer (ADC), as part of its monitoring process, tests for errant sensor behavior such as unreasonable jumps in altitude and unreasonably high vertical speed. When the ADC detects an errant sensor behavior, the ADC displays a flag for 5.5 seconds plus the time it takes for the sensor to settle within the limits for another 5.5-second period. This results in a minimum ADC flag display of 11 seconds.

Testing of certain Rockwell Collins ADCs reveals the ADC could display unwarranted flags on aircraft where you can select the “Normal/Alternate Air” static source. When there is a significant difference between normal and alternate/revisionary static air sources, you can exceed the ADC monitor thresholds and the ADC would display flags.

If the flight crew used the undesirable ADC flag displays to deselect the alternate static air source before the initial 11-second display period, a valid air source may have been deselected. Confusion could result when the previously unflagged normal static air source is reselected. This may also result in the ADC displaying a flag for the first 11 seconds. The affected ADC's include:

If these situations were to occur while the flight crew was making critical flight decisions, this unwarranted ADC flag could distract the crew and the lack of attention to the critical actions could result in an unsafe operating condition.

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 Rockwell Collins ADC-85, ADC-85A, ADC-850D, and ADC-850F air data computers that are installed on airplanes. This proposal was published in the Federal Register as a supplemental notice of proposed rulemaking (NPRM) on March 30, 2002 (67 FR 12910). The supplemental NPRM proposed to require you to replace any affected ADC with one that has a reprogrammed and tested CPU circuit card and circuit card assembly.

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

A commenter states that, even though fitted with the subject ADC, the Saab 340 is not designed with the ability to use alternate static sources.

We concur that the airplane is not designed with the ability to use alternate static sources. Therefore, we are removing the Saab 340 from the applicable airplane model list.

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 more than 329 airplanes in the U.S. registry.

We estimate the following costs to accomplish the removal, installation, reprogramming, and testing of the ADC in each airplane:

For units that are still under warranty, Rockwell Collins will provide the parts and labor at no charge.

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 .

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).

Accordingly, this amendment (1) adds to appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during August 2002, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during August 2002, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during August 2002.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to Part 4044) will be 5.50 percent for the first 25 years following the valuation date and 4.25 percent thereafter. These interest assumptions represent a decrease (from those in effect for July 2002) of 0.20 percent for the first 25 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to Part 4022) will be 4.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for July 2002) of 0.25 percent for the period during which a benefit is in pay status and are otherwise unchanged.

For private-sector payments, the interest assumptions (set forth in Appendix C to Part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during August 2002, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act* * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the New Mexico program on December 31, 1980. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980, Federal Register (45 FR 86459). You can also find later actions concerning New Mexico's program and program amendments at 30 CFR 931.11, 931.15, 931.16, and 931.30.

By letter dated November 28, 2001, New Mexico sent us an amendment to its program (Administrative Record No. NM-853) under SMCRA (30 U.S.C. 1201 et seq. ). New Mexico sent the amendment in response to June 19, 1997, and April 2, 2001 letters (Administrative Record Nos. NM-796 and NM-851) that we sent to New Mexico in accordance with 30 CFR 732.17(c); in response to the required program amendments at 30 CFR 931.16(e), (u) and (v); and to include the changes made at its own initiative.

We announced receipt of the proposed amendment in the January 9, 2002, Federal Register (67 FR 1173). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. NM-857). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on February 8, 2002. We received comments from two Federal agencies.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

New Mexico proposed minor wording, editorial, punctuation and/or grammatical changes to the following previously-approved rules.

19.8.1 through 19.8.34 New Mexico Annotated Code (NMAC) (no corresponding Federal regulation or SMCRA provision), administrative code citations;

19.8.8.802.A NMAC (30 CFR 780.21(c)), general requirements for description of hydrology and geology;

19.8.13.1307 NMAC (30 CFR 774.17(b)(3)), requirement to obtain a bond;

19.8.19.1900.A, C and C(2) NMAC (30 CFR 772.11(a), 772.12, and 772.13(a)); requirements concerning coal exploration; and

19.8.20.2009.E and E(5) NMAC (30 CFR 780.21(c)), general requirements for the hydrologic balance.

Because these changes are minor, we find that they will not make New Mexico's rules less effective than the corresponding Federal regulations.

New Mexico proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations.

19.8.1.7.O(5) NMAC (30 CFR 701.5), definition of “other treatment facilities;”

19.8.1.7.P(12) NMAC (30 CFR 701.5), definition of “previously mined area;”

19.8.1.7.Q(1) NMAC (30 CFR 701.5), definition of “qualified laboratory;”

19.8.2.201 NMAC (30 CFR 761.11), areas where surface coal mining operations are prohibited;

19.8.2.202.A and B(1), (2) and (3), and (C) NMAC (30 CFR 761.17(a) and (b)(1), (2) and (3), and (C)), regulatory authority obligations at the time of permit application review;

19.8.2.202.E NMAC (30 CFR 761.15), procedures for waiving the prohibition on surface coal mining operations within the buffer zone of an occupied dwelling;

19.8.2.202.F NMAC (30 CFR 761.17(b)(4) and (d)(1) through (3)), procedures for joint approval of surface coal mining operations that will adversely affect publicly owned parks or historic places;

19.8.2.202.G NMAC (30 CFR 761.13(c)), procedures for compatibility findings concerning surface coal mining operations on Federal lands in national forests;

19.8.2.202.H and 19.8.3.300.C NMAC (30 CFR 762.14), applicability of petitions for lands designated unsuitable for mining to areas where surface coal mining operations are prohibited or limited;

19.8.2.203 NMAC (30 CFR 761.12), exceptions to rules concerning areas where surface coal mining operations are prohibited;

19.8.6.602.A and 603 NAMC (30 CFR 772.12), permit requirements for exploration;

19.8.7.704.C NMAC (30 CFR 778.16), proposed permit area location with respect to areas designated unsuitable for mining;

19.8.8.801.B NMAC (30 CFR 779.12), general environmental resources information for cultural and historic resources;

19.8.9.912.A and B NMAC (30 CFR 780.31), protection of public parks and historic places;

19.8.11.1106.D NMAC (30 CFR 773.15), criteria for permit approval or denial;

19.8.14.1412.A NMAC (30 CFR 800.40(a)(3)), bond release application requirements;

19.8.14.1415.A NMAC (30 CFR 700.11(d)), termination of jurisdiction;

19.8.20.2057.A and 19.8.20.2058.A NMAC (30 CFR 816.104(a), 816.105(a), 817.104(a), and 817.105(a)), definitions of “thin overburden” and “thick overburden;'

19.8.24.2400.C NMAC (30 CFR 785.17(e)(5)), prime farmland performance standard;

19.8.29.2900.G NMAC (30 CFR 840.11(g)), definition of “abandoned site;”

19.8.31.3107.A NMAC (30 CFR 845.19(a)), request for an administrative review hearing concerning assessed civil penalties; and

19.8.32.3200.B, 19.8.32.3203.A and B(1) through (6), and 19.8.32.3206.A NMAC (30 CFR 795.6(a)(2)(i) and (ii), 795.9(a) and (b)(1) through (6), and 795.12(a), (a)(2) and (a)(3)), eligibility for the small operator assistance program (SOAP), SOAP services and data requirements, and SOAP applicant liability.

19.8.35.7.A, B, C, and D NMAC (30 CFR 761.5 and 761.5(a), (b) and (c)), definition of “valid existing rights” (VER); and

19.8.35.8.A and B NMAC; 19.8.35.9.A, B, C, and D NMAC; 19.8.35.10A, B, C, and D NMAC; 19.8.35.11.A, B, and C NMAC; 19.8.35.12.A, B, C, D, and E NMAC; 19.8.35.13 NMAC; and 19.8.35.14 NMAC (30 CFR 761.16(a), (b), (c), (d), (e), (f), and (g)), submission and processing of requests for VER.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

At 19.8.1.7.F(5) and N(2) NMAC, New Mexico proposed to revise the definitions of, respectively, (1) “fixed assets” to mean plants, facilities and equipment, not used for the production, transportation or processing of coal, and does not include land or coal in place and (2) “net worth” to mean the total assets minus total liabilities and is equivalent to owner's equity, and, for the purposes of 19.8.14.1410.A(3)(b) NMAC, plants, facilities and equipment used for the production, transportation or processing of coal, and land or coal in place shall not be considered assets in a calculation of net worth.

At 30 CFR 800.23(a) and (b), the counterpart Federal regulations define, respectively, (1) “fixed assets” to mean plants and equipment but does not include land or coal in place and (2) “net worth” to mean total assets minus total liabilities and is equivalent to owner's equity.

New Mexico's proposed definition of “fixed assets” requires an applicant for self-bonding to reduce the value of its fixed assets by eliminating plants, facilities and equipment used for the production, transportation or processing of coal from the calculation of fixed assets. Similarly, New Mexico's proposed definition of “net worth” requires an applicant, that bases its qualification for self-bonding on the financial tests at 19.8.14.1410.A (3)(b) NMAC, to remove the value of assets such as plants, facilities and equipment used for the production, transportation or processing of coal from its calculation of net worth. These provisions are not included in the counterpart Federal definitions.

Self-bonds are not based upon the permittee's assignment or pledge of assets. Therefore, a regulatory authority relies on the financial tests to indicate whether the liquidity and solvency levels of a self-bonding applicant are sufficient for the applicant to perform its reclamation obligations without separate surety. Plants, facilities and equipment used for coal mining are likely to be more temporary in nature and likely to be removed or demolished following mining as part of the approved reclamation plan. New Mexico's proposed revisions of the definitions of “fixed assets” and “net worth” require a self-bonding applicant to rely on the value of more permanent assets not related to its mining operation.

With these proposed revisions, New Mexico has proposed to provide additional protection from the risk of forfeiture of a self-bond than is afforded in the Federal regulations. In its preamble to the final self-bonding regulations (48 FR 36418, August 10, 1983), OSM indicated that some balance sheet items were defined by using standard accounting definitions; others were altered to provide more protection and less risk to the regulatory authority. OSM further stated that in its definition of fixed assets—

New Mexico's proposal to eliminate assets used for coal mining is consistent with the Federal regulations at 30 CFR 800.23(a) concerning self-bonding that eliminate the use of assets whose values are unreliable and not easily liquidated.

Therefore, the Director finds that New Mexico's proposed definitions at 19.8.1.7.F(5) and N(2) NMAC are no less stringent than SMCRA and no less effective than the counterpart Federal regulations at 30 CFR 800.23(a) and approves them.

New Mexico's existing rule at 19.8.1.7.I(7) NMAC defines “intermittent stream” to mean “a stream or reach of stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.”

OSM, at 30 CFR 701.5, defines “intermittent stream” to mean (a) a stream or reach of stream that drains a watershed of at least one square mile, or (b) a stream or reach of stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

OSM required at 30 CFR 931.16(e), (u) and (v) that New Mexico revise its definition of “intermittent stream,” at 19.8.1.7.I(7) NMAC, to include any watershed that drains more than one square mile or otherwise revise its rules, concerning streams that drain watersheds one square mile or greater in area and that flow only in direct response to surface runoff from precipitation or melting snow or ice, to be no less effective than the Federal regulations concerning permit application requirements and performance standards involving diversions, roads and stream protection. (See findings nos. 7(a), 20(d), and 21; 58 FR 65907, December 17, 1993; Administrative Record No. NM-706.)

New Mexico responded by explaining why, based on regional conditions and historical experience, it would be inappropriate to include any watershed draining one-square mile in its definition of “intermittent stream” and why the existing New Mexico program provides protection for roads and streams involving watersheds one square mile or greater in area that flow only in direct response to surface runoff from precipitation or melting snow or ice that is no less effective than the Federal program. New Mexico pointed out that the inclusion of the one square mile watershed criteria in its definition of “intermittent stream” would, in effect, cause thousands of normally dry ephemeral arroyos in New Mexico to arbitrarily be classified as intermittent streams. Furthermore, New Mexico stated—

Under the Federal regulations at 30 CFR 816.43, concerning diversions, intermittent streams may be diverted but must comply with findings for stream buffer zones and the diverted channel must be designed and certified by a professional engineer for a 10-year, 6-hour storm event for temporary and 100-year, 6-hour storm events for permanent diversions. In the Federal regulations, diversions of ephemeral streams must be designed for 2-year, 6-hour storms for temporary and 10-year, 6-hour storms for permanent diversions.

Under the Federal regulations at 30 CFR 816.57, concerning stream buffer zones, no land within 100 feet of an intermittent stream shall be disturbed unless the regulatory authority specifically authorizes surface mining activities closer to or through such a stream. The regulatory authority may authorize such activities only after finding that surface mining activities will not cause or contribute to the violation of applicable water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream. The stream buffer limitations do not apply to ephemeral streams.

Under the Federal regulations at 30 CFR 816.150(a), concerning all roads, no part of any road shall be located in the channel of an intermittent stream unless specific approval is granted by the regulatory authority in accordance with 30 CFR 816.41 through 30 CFR 816.43 and 30 CFR 816.57. Under the Federal regulations at 30 CFR 816.151, concerning primary roads, fords of intermittent streams are prohibited unless specifically approved by the regulatory authority as temporary routes during periods of road construction. These limitations on roads do not apply to ephemeral streams.

New Mexico specifically addressed these regulatory ramifications concerning ephemeral streams draining areas greater than one square mile with the following discussion in support of the effectiveness of its existing program:

New Mexico noted that the existing New Mexico program requires that all structures ( e.g., diversions and low water crossings) treating disturbed area (emphasis added) runoff must be designed, at a minimum, to safely pass the 10-year, 24-hour storm event. This requirement does not exist in the Federal program, and is more stringent than the Federal regulations with respect to temporary diversions of ephemeral streams, which require that temporary structures be designed to safely pass the 2-year, 6-hour storm event. In New Mexico, only temporary clear water diversions of ephemeral drainages would be designed using the minimum 2-year, 24-hour storm event.

In addition, New Mexico stressed that the existing implementation of its design rules for all structures errs on the conservative side because the analysis of a watershed (1) includes high curve runoff numbers based on soil types and a lack of vegetation and (2) assumes that rain falls evenly over the entire watershed. It is the nature of storm events in New Mexico that rain is highly localized and rarely if ever falls over an entire watershed. These aspects of watershed analysis in New Mexico result in structures designed to handle more water than would be anticipated to actually ever result from a design storm event. Therefore, should a flash flood occur in one part of the watershed, New Mexico asserts that the diversion or road crossing designed for ephemeral streams draining larger than one square mile will include the capacity to handle the more localized event.

New Mexico provided examples of approved diversions and road crossings designed under the existing rules for ephemeral streams draining areas larger than one square mile. These examples are from three of the five active mining operations in New Mexico. Because of topographic conditions in New Mexico where the other two approved mining operations exist, there are no ephemeral streams draining a watershed that is greater than one square mile. Three of these five examples have been in place for 15, 16, and 22 years; the other two have been in place 2 and 3 years. These structures involve ephemeral drainages with watersheds ranging in area from 2.3 to 121.7 square miles.

Specifically, New Mexico approved: (1) In 2000, a low water road crossing for an ephemeral stream that drains a watershed of 121.7 square miles; (2) in 1999, a temporary diversion for a ephemeral stream that drains a watershed of 2.3 square miles; (3) in 1987, a diversion for an ephemeral stream that drains a watershed of 16 square miles; (4) in 1986, a diversion for an ephemeral stream that drains a watershed of 7.2 square miles; and (5) in 1980, a diversion for an ephemeral stream that drains a watershed of 121.7 square miles. In the history of these examples, New Mexico has never observed problems in the field. New Mexico offered these examples as evidence that its exiting program provides for adequate protection for structures involving ephemeral streams that drain more than one square mile and flow only in direct response to surface runoff from precipitation or melting snow or ice.

Based on the above discussion, OSM finds that New Mexico has addressed all programmatic ramifications concerning the protection of ephemeral streams draining areas greater than one square mile, and, in doing so, has demonstrated, through rationale and field examples, that its existing program rules are no less effective than the Federal program in providing for protection of ephemeral streams draining an area of more than one square mile. Therefore, the Director no longer requires revision of New Mexico's definition of “intermittent stream” at 19.8.1.7.I(7) NMAC to include streams draining an area greater than one square mile and is removing the required amendments at 30 CFR 931.16(e), (u) and (v).

Both New Mexico's proposed rules at 19.8.2.202.D NMAC and the counterpart Federal regulations at 30 CFR 716.14 require that an applicant must obtain any necessary approvals from the authority with jurisdiction over the road if the applicant proposes to: (1) Relocate a public road, (2) close a public road, or (3) conduct surface coal mining operations within 100 feet, measured horizontally, of the outside right-of-way line of a public road.

The Federal regulation at 30 CFR 761.14(c) requires that, before approving one of the above exceptions to the prohibitions placed on mining near public roads, the regulatory authority, or the public road authority that it designates, must determine that the interests of the public and affected landowners will be protected. The Federal regulations state that before making this determination, the authority must: (1) Provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation; (2) if a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality; and (3) based upon information received from the public, make a written finding as to whether the interests of the public and affected landowners will be protected. If a hearing was held, the authority must make this finding within 30 days after the hearing.

New Mexico proposed at 19.8.2.202.D NMAC that, where the proposed mining operation is to be conducted within 100 feet measured horizontally of the outside right-of-way line of any public road (except where mine access roads or haulage roads join such right-of-way line) or where the applicant proposes to relocate or close any public road, the Director (of the New Mexico program) shall: (1) Require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road; (2) provide notice in a newspaper of general circulation in the affected locale of a public hearing at least 2 weeks before the hearing; (3) hold a public hearing in the locality of the proposed mining operations where any member of the public may participate for the purpose of determining whether the interests of the public and affected landowners will be protected; and (4) make a written finding based upon information received at the public hearing within 30 days after completion of the hearing as to whether the interests of the public and affected landowners will be protected from the proposed mining operations.

New Mexico's rules are the same as the Federal regulations with one exception. New Mexico, instead of requiring a public comment period during which a hearing may be requested, has elected to always require a public hearing as a means of determining whether the interests of the public and affected landowners will be protected. The counterpart Federal regulations only require a public hearing if requested during a public comment period. New Mexico, in always providing for a public hearing, has afforded a greater opportunity for public input than do the Federal regulations.

The Director finds that New Mexico's proposed rules at 19.8.2.202.D NMAC are consistent with and no less effective than the Federal regulations at 30 CFR 716.14 and approves them.

New Mexico proposed rules at 19.8.29.2900.H NMAC concerning the frequency of inspection at abandoned coal mines. With one exception, New Mexico's proposed rules are identical to the counterpart Federal regulations at 30 CFR 840.11(h).

New Mexico's proposed 19.8.29.2900.H NMAC provides for a minimum inspection frequency of one complete inspection per quarter at abandoned sites. The counterpart Federal regulations at 30 CFR 840.11(h) provide for a minimum inspection frequency of one complete inspection per year. New Mexico's proposed rules eliminate the requirement for the partial inspections at abandoned sites that are required for active coal mine operations, as do the counterpart Federal regulations. However, New Mexico's proposed minimum inspection frequency of one complete inspection per quarter is greater than and more stringent than that provided for in the Federal regulations. A greater inspection frequency may result in greater environmental protection at the abandoned site in that field conditions would be assessed more frequently.

Therefore, the Director finds that New Mexico's proposed rules at 19.8.29.2900.H NMAC are no less effective than the Federal regulations at 30 CFR 840.11(h) and approves them.

We asked for public comments on the amendment (Administrative Record No. NM-854), but did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the New Mexico program (Administrative Record No. NM-854).

By letter dated December 17, 2001 (Administrative Record No. NM-855), the Bureau of Land Management (BLM) responded with the following comments. BLM requested clarification of New Mexico's proposed rules at (1) 19.8.2.201 NMAC, concerning areas where surface coal mining operations are prohibited, and (2) 19.8.24.2400.C NMAC, concerning prime farmland.

Areas where surface coal mining operations are prohibited. New Mexico's proposed rule at 19.8.2.201 NMAC is substantively identical to the Federal regulation at 30 CFR 761.11. Both identify specific locations where surface coal mining operations are prohibited, subject to valid existing rights (VER), with possible exceptions. Features protected include public and National Parks, wildlife refuges, public roads, occupied dwellings, schools, churches and cemeteries.

BLM asked whether mining would be prohibited or allowed on the areas in question if a cultural feature were created after the coal lease was issued, or after the operation began on the lease or logical mining unit.

When a mining operation began is directly relevant to whether resource protection under 30 CFR 761.11 and 19.8.2.201 NMAC is exempted. Whether the coal lease was issued may be relevant to a determination of VER. Below is an explanation of the proposed New Mexico rules that would determine when mining would be prohibited.

OSM's Federal regulations at 30 CFR 761.12 and New Mexico's proposed rules at 19.8.2.203 NMAC exempt the prohibitions of 30 CFR 761.11 and 19.8.2.201 NMAC (1) concerning surface coal mining operations with a valid permit that existed when the land came under the protection of 30 CFR 761.11 or 19.8.2.201 NMAC and (2) with respect to operations existing prior to August 3, 1977, lands upon which validly authorized surface coal mining operations existed when the land came under the protection of the Federal regulations at 30 CFR 761.11 or the New Mexico rules at 19.8.2.201 NMAC.

Where these exemptions do not apply, the prohibitions may be waived if the applicant can demonstrate VER as defined by New Mexico at proposed rules 19.8.35.7.A through D NMAC and in the Federal regulations at 30 CFR 761.5(a), (b) and (c).

OSM's definition of VER (New Mexico's definition is identical to OSM's definition) provides for a person claiming VER to demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operations intended. This right must exist at the time that the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). Applicable State statutory or case law will govern interpretation of documents relied upon to establish property rights, unless Federal law provides otherwise. If no applicable State law exists, custom and generally accepted usage at the time and place that the documents came into existence will govern their interpretation. However, a person claiming VER must also demonstrate compliance with one of the following standards: (1) All permits and other authorizations required to conduct surface coal mining operations must have been obtained, or a good faith effort to obtain all necessary permits and authorizations must have been made, before the land came under the protection of Sec. 761.11 or 30 U.S.C. 1272(e). At a minimum, an application must have been submitted for any permit required under the Federal regulations or a counterpart State program; (2) the land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations have been obtained, or a good faith attempt to obtain all permits and authorizations has been made, before the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). To meet this standard, a person must demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e) when the regulatory authority approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the agency making the determination may consider factors such as: (i) The extent to which coal supply contracts or other legal and business commitments that predate the time that the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e) depend upon use of that land for surface coal mining operations. (ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e) rely upon use of that land for surface coal mining operations. (iii) The extent to which investments in the operation before the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e) rely upon use of that land for surface coal mining operations. (iv) Whether the land lies within the area identified on the life-of-mine map submitted under 30 CFR 779.24(c) or 30 CFR 783.24(c) before the land came under the protection of 30 CFR 761.11.

Furthermore, a person who claims VER to use or construct a road across the surface of lands protected by 30 CFR 761.11 or 30 U.S.C. 1272(e) must demonstrate that one or more of the following circumstances exist if the road is included within the definition of “surface coal mining operations” in 30 CFR 700.5: (1) The road existed when the land upon which it is located came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e), and the person has a legal right to use the road for surface coal mining operations. (2) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e), and, under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations. (3) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). (4) VER exist under paragraphs (a) and (b) of the definition.

Because New Mexico's proposed rules at 19.8.2.201 NMAC are substantively identical to the Federal regulations at 30 CFR 761.11, the Director, as discussed in Finding No. III.B above, is approving them. The Director is not requiring that New Mexico take any action in response to BLM's comments.

Prime Farmlands. New Mexico's proposed rule 19.8.24.2400.C NMAC is identical to the Federal regulation at 30 CFR 785.17(e)(5) and requires that—

OSM promulgated the Federal regulation at 30 CFR 785.17(e)(5) on October 18, 1988; see the preamble discussion at II.A, 53 FR 40828, 40829—40835. In this discussion OSM asserted that the relocation of prime farmland soils within the permit is authorized. The only limitation is that the applicant must demonstrate that there will be no decrease in the acreage of prime farmland soils and the productivity capacity of reconstructed prime farmland will be maintained. OSM clarified that where non-prime farmland areas are found on the permit areas, these areas may be subjected to land use changes, including the creation of water bodies, provided that the alternative post-mining land use requirements of the regulations are met.

OSM stated that prime farmland soils removed for water bodies must be removed, segregated, and stockpiled, but not replaced within the impoundment. These soils are to be reconstructed in the same way other prime farmland soils are reconstructed within the permit area and with the review and concurrence of the Nation Resource Conservation Service (NRCS, old Soil Conservation Service). OSM also stated that prime farmland soils may not be moved from a pre-mining location to a post-mining location within a permit area if the pre-mining area would not normally be disturbed in order to extract the coal, and, when the shifting of the location of prime farmland soils is part of a complete mining and reclamation plan, such soil relocation will be kept to a minimum, will be reviewed and concurred in by the NRCS and must still meet the prime farmland soil reconstruction and bond release standards.

OSM did not discuss the location of the water body with respect to prime farmland soils. The plain language of New Mexico's rule and the Federal regulation requires that the water body be within the post-reclamation non-prime farmland portions of the permit area. Therefore, it could not be within the post-reclamation prime farmland portions of the permit area. The location of the water body with respect to the location of the prime farmland soils would be predicated by the requirement that the applicant demonstrate that the productivity of the prime farmland soils would be maintained. We also note that protection of all non-prime farmland topsoil is required and it would not be placed beneath a reclaimed water body.

Because New Mexico's proposed rules at 19.8.24.2400.C NMAC are substantively identical to the Federal regulations at 785.17(e)(5), the Director, as discussed in Finding No. III.B above, is approving them. The Director is not requiring that New Mexico take any action in response to BLM's comments.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that New Mexico proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. NM-854). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On December 10, 2001, we requested comments on New Mexico's amendment (Administrative Record No. NM-854). ACHP did not respond to our request.

The SHPO responded with a letter dated January 10, 2002 (Administrative Record No. NM-856), with the following comment concerning New Mexico's proposed rule at 19.8.9.912.A NMAC.

New Mexico's proposed 19.8.9.912.A NMAC requires that an applicant for a proposed operation that may have an adverse effect on any publicly owned parks or any places listed on the National Register of Historic Places shall include a plan describing the measures to be used to prevent adverse impacts, or designed to minimize adverse impacts when valid existing rights exist or joint agency approval is to be obtained under 19.8.2.202.E NMAC.

SHPO recommended that New Mexico's proposed rule at 19.8.9.912.A NMAC include a reference to the State Register of Cultural Properties to ensure adequate protection to properties listed only on the State Register and not listed on the National Register.

Properties on the State Register of Cultural Properties include properties that are listed on the National Register of Historic Places, are in the process of being listed on the national register, and would likely be eligible for listing on the National Register of Historic Places. Properties that would be eligible for listing on the National Register of Historic Places would be protected under proposed 19.8.9.912.B NMAC. New Mexico's rule at 19.8.9.912.B NMAC provides that the Director of the New Mexico program may require the applicant to protect historic or archeological properties listed on or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. Appropriate mitigation and treatment measures may be required to be taken after permit issuance provided that the required measures are completed before the properties are affected by any mining operation.

Proposed 19.8.9.912.A and B NMAC are identical to the Federal regulations at 30 CFR 780.31(a) and (b). The Federal regulations and New Mexico's proposed rules do provide for more stringent protection of public parks and places listed on the National Register of Historic Places. However, applications that may impact cultural and historic resources are sent by the Director of the New Mexico program to the SHPO for review and comment. New Mexico would take seriously all recommendations from the SHPO and would likely, under 19.8.9.912B NMAC, require mitigation of any adverse impacts.

Because OSM cannot require that New Mexico promulgate rules that are more stringent than the Federal regulations, the Director, as discussed in Finding No. III.B above, is approving New Mexico's proposed rules. The Director is not requiring that New Mexico take action in response to this comment.

Based on the above findings, we approve New Mexico's November 28, 2001, amendment.

To implement this decision, we are amending the Federal regulations at 30 CFR part 931, which codify decisions concerning the New Mexico program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

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

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

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

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

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: a. does not have an annual effect on the economy of $100 million; b. will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and c. does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

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

For the reasons set out in the preamble, 30 CFR 931 is amended as set forth below:

On May 8, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Captain of the Port Toledo Zone, Lake Erie” in the Federal Register (67 FR 30846). We received 10 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 . The permanent security zones being established by the rulemaking are smaller in size than the temporary security zones currently in effect. By immediately implementing the smaller zone size, we will be relieving some of the burden placed on the public by a larger security zone. In addition, the temporary security zones currently in place may impact several private residences, the smaller permanent security zones ensure that these residences are not adversely impacted.

On September 11, 2001, the United States was the target of coordinated attacks by international terrorists resulting in the destruction of the World Trade Center, significant damage to the Pentagon, and tragic loss of life. National security and intelligence officials warn that future terrorists attacks are likely.

This rule establishes a permanent security zone off the waters of Enrico Fermi 2 Nuclear Power Station, Newport, Michigan. This security zone includes waters and adjacent shoreline within a boundary commencing at 41°58.4′ N, 083°15.4′ W; then northeast to 41°58.5′ N, 083°15.0′ W; then southeast to 41°58.2′ N, 083°13.7′ W; then south to 41°56.9′ N, 083°13.8′ W; then west to 41°56.9′ N, 083°15.2′ W; then back to the starting point at 41°58.4′ N, 083°15.4′ W. These coordinates are based upon North American Datum 1983 (NAD 83).

This rule also establishes a permanent security zone off the waters of Davis Besse Nuclear Power Station, Port Clinton, Ohio. This security zone includes waters and adjacent shoreline within a boundary commencing at 41°36.1′ N, 083°04.7′ W; then north to 41°37.0′ N, 083°03.9′ W; east to 41°35.9′ N, 083°02.5′ W; southwest to 41°35.4′ N, 083°03.7′ W; then west following the shoreline back to the point of origin (NAD 83).

These security zones are necessary to protect the public, facilities, and the surrounding area from possible sabotage or other subversive acts. All persons other than those approved by the Captain of the Port Toledo, or his authorized representative, are prohibited from entering or moving within these zones. The Captain of the Port Toledo may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. The Captain of the Port Toledo's on-scene representative will be the patrol commander. In addition to publication in the Federal Register , the public will be made aware of the existence of this security zone, exact location and the restrictions involved via Local Notice To Mariners.

The Coast Guard received 10 comments on the proposed rulemaking. Eight comments support the establishment of security zones around the nuclear power stations. The only concern of those in favor of the establishment of security zones was that Coast Guard ensure the permanent security zones do not encompass the beachfront of any private residences. The two comments against establishing permanent security zones questioned the impact of having security zones.

Three comments recommended changes to the security zone coordinates surrounding the Davis Besse Nuclear Power Station. The commenters noted that the Coast Guard's beginning coordinate for the security zone around the David Besse Power Station (41°36.3′ N, 083°04.9′ W) included several private residences. The comments requested the Coast Guard identify a new starting coordinate that excludes the private residences. After conducting an updated security risk assessment of the facility, the Coast Guard concurs with these comments and has identified the new starting coordinate as 41°36.1′ N, 083°04.7′ W (NAD 83).

Two comments opposed the security zone around the Enrico Fermi 2 Power Station, one questioning the impact of a security zone and the other stating that allowing fishermen in the area is a better way to protect the area. The security zones create a clear area in which unauthorized persons are readily detectable. This area, coupled with Coast Guard patrols, the assistance of state, local, and the nuclear power plant security personnel, all help to create an area to detect and respond to unauthorized individuals or vessels. Currently, the Captain of the Port Toledo believes that this method is the most effective way of deterring waterborne security threats to these nuclear facilities.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has exempted it from review under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT was not conducted. The change to the starting coordinate discussed above does not change this assessment.

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.

These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. Our rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In addition, in the event that it may be necessary, prior to transiting commercial vessels can request permission from the Captain of the Port Toledo to transit through the zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No comments or questions were received from any small businesses.

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this 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. We received several comments from property owners that wanted to ensure the security zones did not include any of their beachfront property. The western end of the security zone was adjusted slightly to ensure that the security zone did not encompass any private property.

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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

The Coast Guard is implementing the permanent safety zones in 33 CFR 165.909 (67 FR 44558, July 3, 2002), for fireworks displays in the Captain of the Port Milwaukee Zone during July 2002. The following safety zones are in effect for fireworks displays occurring in the month of July 2002:

(1) City of Sheboygan Fourth of July Fireworks, Sheboygan, WI. Location: All waters and adjacent shoreline of Lake Michigan encompassed by the arc of a circle with an 840-foot radius with its center in the approximate position 43°44.48′ N, 087°42.14′ W (NAD 1983), on July 4, 2002 from 9:20 p.m. until 10:05 p.m. In the event of inclement weather on July 4, 2002, the safety zone will be enforced on July 5, 2002 from 9:20 p.m. until 10:05 p.m. This safety zone will encompass the entrance to Sheboygan Harbor and will result in its closure while the safety zone is in effect.

(2) City of Kenosha Fourth of July Fireworks, Kenosha, WI. Location: All waters and adjacent shoreline around the South Pier Light area, Lake Michigan encompassed by the arc of a circle with an 840-foot radius with its center in approximate position 42°35.17′ N, 087°48.33′ W (NAD 1983), on July 4, 2002 from 9:15 p.m. until 10:05 p.m. This safety zone will encompass the entrance to Kenosha Harbor and will result in its closure while the safety zone is in effect.

(3) U.S. Bank (Firstar) Fireworks, Milwaukee, WI. Location: All waters and adjacent shoreline south of Juneau Park, outer Milwaukee Harbor encompassed by the arc of a circle with an 840-foot radius of the fireworks barge with its center in approximate position 43°02.23′ N, 087°53.30′ W (NAD 1983), on July 3, 2002 from 9:20 p.m. until 10:10 p.m. In the event of inclement weather on July 3, 2002, the safety zone will be enforced on July 4, 2002 from 9:20 p.m. until 10:10 p.m.

(4) Manitowoc Municipal Fourth of July Fireworks, Manitowoc, WI. Location: The primary location will include all waters and adjacent shoreline east of the Manitowoc Yacht Club, Lake Michigan encompassed by the arc of a circle with an 840-foot radius of the fireworks barge in approximate position 44°06.05′ N, 087°38.37′ W (NAD 1983), on July 4, 2002 from 9:20 p.m. until 10:10 p.m. The alternate location will include all waters and the adjacent shoreline encompassed by the arc of a circle with a 420-foot radius of the fireworks barge with its center in approximate position 44°05.33′ N, 087°39.00′ W (NAD 1983), on July 4, 2002 from 9:20 p.m. until 10:10 p.m. If display is moved to secondary site, it will temporarily close entrance to Manitowoc Harbor.

(5) Fourthfest of Greater Racine, Racine, WI. Location : The primary location will include all waters and adjacent shoreline around the north breakwall, Lake Michigan encompassed by the arc of a circle with a 560-foot radius with its center in approximate position 42°44.14′ N, 087°46.30′ W (NAD 1983) on July 4, 2002 from 9:20 p.m. until 10:10 p.m. The alternate location will include all waters and adjacent shoreline encompassed by the arc of a circle with a 560-foot radius with its center in approximate position 42°44.21′ N, 087°46.45′ W (NAD 1983) (on the beach north of the northern breakwall) on July 4, 2002 from 9:20 p.m. until 10:10 p.m. In the event of inclement weather on July 4, 2002, the safety zone will be enforced on July 5, 2002 from 9:20 p.m. until 10:10 p.m.

(6) Celebrate Amerifest, Green Bay, WI. Location : All waters and adjacent shoreline between the Green Bay & Western Railroad Bridge (mile marker 1.03) and the Mason St. Bridge (mile marker 3.52) on the Fox River on July 4, 2002 from 2 p.m. until 11 p.m. This safety zone will temporarily close the Fox River. (This safety zone does not encompass the water of the East River.)

(7) South Shore Frolics Fireworks, Milwaukee, WI. Location : All waters and adjacent shoreline east of the South Shore Park, Milwaukee Harbor encompassed by the arc of a circle with a 280-foot radius with its center in approximate position 42°59.43′ N, 087°52.54′ W (NAD 1983), on July 12, 13, and 14, 2002 from 9:50 p.m. until 10:30 p.m.

(8) Kewaunee Annual Trout Festival, Kewaunee, WI. Location : All waters and adjacent shoreline around the south breakwall area, Lake Michigan encompassed by the arc of a circle with a 560-foot radius with its center in approximate position 44°27.30′ N, 087°29.46′ W (NAD 1983), on July 19, 2002 from 9:20 p.m. until 9:50 p.m. This safety zone will temporarily close the entrance to Kewaunee Harbor.

(9) Port Washington Fish Days Fireworks, Port Washington, WI. Location: All waters and adjacent shoreline around the Wisconsin Electric Coal Dock, Lake Michigan encompassed by the arc of a circle with an 840-foot radius with its center in approximate position 43°23.07′ N, 087°51.55′ W (NAD 1983), on July 20, 2002 from 9:25 p.m. until 10:10 p.m. This safety zone will temporarily close the entrance to Port Washington Harbor.

(10) Germanfest Fireworks, Milwaukee, WI. Location: All waters off of Henry W. Maier Festival Park Harbor Island, outer Milwaukee Harbor from the point of origin 43°02.209′ N, 087°53.714′ W; then southeast to 43°02.117′ N, 087°53.417′ W; then south to 43°01.767′ N, 087°53.417′ W; southwest to 43°01.555′ N, 087°53.772′ W; then north following the shoreline back to the point of origin (NAD 1983) on July 26, 27, and 28, 2002 from 9:50 p.m. until 10:30 p.m. The Harbor Island Lagoon Area is encompassed by this safety zone.

In order to ensure the safety of spectators and transiting vessels, these safety zones will be enforced for the duration of the events. Vessels may not enter the safety zone without permission from Captain of the Port Milwaukee. Requests to transit the safety zone must be made in advance by contacting the person listed in FOR FURTHER INFORMATION CONTACT and must be approved by the Captain of the Port Milwaukee before transits will be authorized. Spectator vessels may anchor outside the safety zone but are cautioned not to block a navigable channel.

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. The permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life, injury, or damage to property or the environment.

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

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

This temporary rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

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

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

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offered to assist small entities in understanding this rule so that they can better evaluate its effectiveness and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would 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.

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

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

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule was issued, would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States.

For the same reasons, 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 . The Coast Guard will issue a broadcast notice to mariners and place enforcement vessels in the vicinity to advise mariners of the restriction. While this rule is in effect, the Coast Guard will complete notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment within the Captain of the Port Miami zone.

Although the Coast Guard has good cause to implement this regulation without a notice of proposed rulemaking, we want to afford the public the opportunity to participate in this rulemaking by submitting comments and related material regarding the size and boundaries of these security zones in order to minimize unnecessary burdens. If you do so, please include your name and address, identify the docket number for this rulemaking [COTP Miami 02-054] indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this temporary final rule in view of them.

The terrorist attacks of September 2001 killed thousands of people and heightened the need for development of various security measures throughout the seaports of the United States, particularly those vessels and facilities which are frequented by foreign nationals and maintain an interest to national security. Following these attacks by well-trained and clandestine terrorists, national security and intelligence officials have warned that future terrorists attacks are likely.

The Captain of the Port (COTP) of Miami has determined that there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the Ports of Palm Beach, Miami, Port Everglades, and Key West, Florida against hazardous cargo vessels and high capacity passenger vessels entering, departing and moored within these ports. The same threat is posed to the power plants located at Hutchinson Island and Turkey Point and these security zones are necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

The Coast Guard Captain of the Port (COTP), Miami established temporary security zones in these areas shortly following the September 11, 2001 attacks. Those temporary final rules (TFRs) issued before this rulemaking will expire soon:

On September 11, 2001, the COTP issued a TFR (67 FR 9194, 9195, February 28, 2002, Docket # COTP Miami 01-093) for 100-yard security zones around certain vessels in the Port of Palm Beach, Miami, Port Everglades, and Key West, FL, that expired September 25, 2001. On September 25, 2001, the COTP issued another TFR (67 FR 1101, January 9, 2002, COTP Miami 01-115) that maintained these 100-yard security zones around certain vessels in the Ports of Palm Beach, Miami, Port Everglades, and Key West, FL, and added a reference to specific points (buoys) where moving zones were activated and deactivated. This second TFR will expire June 15, 2002.

On September 21, 2001, the COTP issued a TFR (67 FR 9194, 9195, February 28, 2002, Docket # COTP Miami 01-106) for security zones around Turkey Point and Saint Lucie, FL, nuclear power plants that expired November 21, 2001. On December 10, 2001, the COTP issued another TFR (67 FR 4355, January 30, 2002, COTP Miami 01-142) for security zones around these two nuclear power plants that will expire June 15, 2002.

On October 7, 2001, the COTP issued a TFR (67 FR 6652, February 13, 2002, COTP Miami 01-116) for fixed-security zones in Port Everglades and Miami, FL, that will expire June 15, 2002.

On October 11, 2001, the COTP issued a TFR (67 FR 4177, January 29, 2002, COTP Miami 01-122) for a fixed-security zone for Port Everglades, FL, that will expire June 15, 2002.

In this one rule, the COTP is combining the security zones discussed in the four immediately proceeding paragraphs. These zones are described below in the same order as they appear in the regulation, 33 CFR 165.T07-054.

Fixed and Moving Security Zones Around Vessels in the Ports of Palm Beach, Port Everglades, Miami, and Key West —Paragraph (a)(1) of this temporary rule will create 100-yard fixed and moving security zones in the Port of Palm Beach, Palm Beach, FL; Port Everglades, Fort Lauderdale, FL; Port of Miami, Miami, FL; and Port of Key West, Key West, FL. These security zones will be activated when a cruise ship, a vessel carrying cargoes of particular hazard or when a liquefied hazardous gas (LHG) vessel as defined in Title 33, Code of Federal Regulations parts 126 and 127 respectively, enter or moor within one of these Ports. The security zones will be activated when a subject vessel passes the sea buoy for inbound transits, and is deactivated when the vessel departs the port and passes the sea buoy.

Fixed Security Zone in the Port of Miami —Paragraph (a)(2) of this temporary rule will create a fixed security zone encompassing all waters between the Port of Miami and MacArthur Causeway. The fixed security zones is activated when two or more high capacity passenger vessels, vessels carrying cargoes of particular hazard or when a liquefied hazardous gas (LHG) vessel as defined in Title 33, Code of Federal Regulations part 120, 126, and 127 respectively, enter or moor within this zone.

Fixed Security Zones in Port Everglades —Paragraph (a)(3) of this temporary rule will create a fixed security zone encompassing the waters of the Intracoastal Waterway between the northern tip of Port Everglades berth 22 near Burt and Jacks Restaurant and a point directly east across the Intracoastal Waterway; and a line drawn from the corner of Port Everglades berth 29 at point easterly across the Intracoastal Waterway to John U. Lloyd Beach, State Recreational Area. The fixed security zone is activated when a cruise ship, a vessel carrying cargoes of particular hazard or when a liquefied hazardous gas (LHG) vessel as defined in Title 33, Code of Federal Regulations part 126 and 127 respectively, enter or moor within this zone.

Hutchinson Island Power Plant and Turkey Point Power Plant —Paragraph (a)(4) of this temporary rule will create a security zone in waters around the Hutchinson Island (Port St. Lucie) nuclear power plant. The zone will include all waters within a line connecting the following points: 27°21.20′ N, 080°16.26′ W; 27°19.18′ N, 080°15.21′ W; 27°20.36′ N, 080°12.83′ W; 27°22.43′ N, 080°13.8′ W. Paragraph (a)(5) will create a security zone for Turkey Point power plant. The zone will include all land and water within lines connecting the following points: 25°26.8′ N, 080°16.8′ W; 25°26.8′ N, 080°21′ W; 25°20′ N, 080°16.8′ W; 25°20′ N, 080°20.4′ W.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary because vessel traffic may be minimally impacted for short periods to allow for the arrival and departure of high risk vessels. Alternate vessel traffic routes have also been accounted for to assist in minimizing delays. Also, the Captain of the Port of Miami may allow persons or vessels into these security zones on a case-by-case basis.

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

Therefore, 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 because most small entities will be able to transit around the security zones and they may be allowed to enter the zone on a case-by-case basis with the authorization of the Captain of the Port.

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because no environmental changes will be affected with the security zone implementation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

The Postal Service published a proposed rule on May 9, 2002, to amend 39 CFR part 265, Release of Information, giving new procedures for releasing the name and address of a particular holder of a postage meter license. The new procedures will ensure that legitimate expectations of individual privacy are met, while providing for the release of information needed for consumer protection. The new procedures remove the processing of requests for information about meter license holders from field locations, and enables Postage Technology Management at Postal Service Headquarters to ensure that information is released appropriately. Comments on the proposed rule were due on or before June 10, 2002. We received no comments objecting to the proposed rule or requesting any changes. Therefore, the rule is adopted as final without any changes.

EPA is approving a delegation request submitted by ME DEP under section 112 of the Clean Air Act (CAA), 42 U.S.C. 7412. On January 17, 2002, EPA proposed to approve ME DEP's delegation request for authority to substitute approved state permit terms and conditions for otherwise applicable federal section 112 standards (67 FR 2390). This action finalizes our approval of ME DEP's delegation request.

On April 15, 1998, EPA promulgated the National Emission Standards for Hazardous Air Pollutants for the Pulp and Paper Industry (63 FR 18617), which has been codified in 40 CFR part 63, subpart S. These standards regulate emissions of air toxics, or hazardous air pollutants (HAPs), within the pulp and paper production source category. The standards require both new and existing major sources within this category to control HAP emissions using the maximum achievable control technology (MACT). We will refer to these section 112 standards as “the Pulp and Paper MACT.”

When Congress enacted the CAA amendments in 1990, it recognized that some state, local, and tribal (S/L/T) air pollution control agencies had developed their own air toxics rules. Congress therefore revised section 112(l) of the CAA to allow the EPA to approve S/L/T rules and regulations to be implemented and enforced in place of section 112 rules and requirements when the S/L/T agency demonstrates that such alternative standards or programs are no less stringent than EPA's rules (65 FR 55810 (September 14, 2000)).

EPA is approving ME DEP's alternative program because ME DEP has demonstrated that its requirements will be no less stringent than the Pulp and Paper MACT.

On July 16, 1999, EPA delegated its authority to implement and enforce the Pulp and Paper MACT to ME DEP. Lincoln Pulp and Paper, in Lincoln, ME (LPP) is one of several sources in Maine currently subject to the Pulp and Paper MACT. On September 25, 2001, ME DEP requested authority to implement and enforce alternative requirements to the Pulp and Paper MACT at LPP. The EPA Regional Office in Boston has been working closely with ME DEP and LPP to define the alternative requirements. ME DEP will continue to implement and enforce the Pulp and Paper MACT without changes for all other pulp and paper mills in Maine.

ME DEP also asked us to approve its demonstration that it has adequate authorities and resources to implement and enforce all CAA section 112 programs and rules. This demonstration, when approved, will streamline the approval process for future CAA section 112(l) applications.

The provisions in 40 CFR part 63, subpart E (“delegation rule”) outline the procedures for delegating the authority to implement and enforce HAP standards and other requirements to S/L/T governments. Subpart E contains several options to allow S/L/Ts to demonstrate equivalency with corresponding federal requirements. These include: slight amendments to the federal section 112 rule (40 CFR 63.92); rule for rule substitution (40 CFR 63.93); program substitution (substituting for part or all of the air toxics program) (40 CFR § 63.97); or equivalency by permit (substituting rules through the operating permit program) (40 CFR 63.94). Under the Equivalency by Permit (“EBP”) provisions, approved S/L/T governments can substitute approved alternative requirements through title V operating permit terms and conditions (40 CFR 63.94).

The EBP process comprises three steps.

First, EPA gives “up-front approval” to a S/L/T EBP program; in this case, the state has submitted its EBP program. This step ensures that ME DEP meets the 40 CFR 63.91(d) criteria for up-front approval, provides a legal foundation for ME DEP to replace some federal section 112 requirements with alternative, federally enforceable requirements, and delineates the specific sources and federal emission standards for which the state is accepting delegation (65 FR 55816). If EPA approves the program, EPA will amend 40 CFR part 63 to incorporate the approval. The approval is contingent upon the state's including, in title V permits, terms and conditions no less stringent than the federal standard. Until the state writes its approved alternative requirements into the specific title V permit and issues it, the federal section 112 requirements remain applicable to the source (65 FR 55817).

Second, the state submits pre-draft title V permit terms and conditions to EPA for approval. EPA evaluates these terms and conditions, which will apply to the sources identified in step 1, and determines whether as a whole they are as stringent as the federal standard. EPA can identify potential issues with the equivalency demonstration and address them prior to the normal operating permit review process (65 FR 55817).

Third, the state writes the pre-draft permit terms and conditions that EPA approved into its draft title V permits. These then go through the regular title V permit issuance process, during which the public has an opportunity to comment on the submittal (40 CFR 70.7(a)(1)(ii) and (h)). EPA and the public can review the alternative requirements before final delegation occurs (65 FR 55817). EPA does not delegate authority unless the state issues the title V permit with the permit terms exactly as EPA approved them.

This rulemaking completes step 1 in the delegation process. ME DEP's EBP program has also completed step 2 in the delegation process. The delegation rule allows a state to submit its pre-draft permit terms and conditions at the same time as its request for up-front approval (40 CFR 63.94(c)(7)). In accordance with 40 CFR 63.94(d)(1)-(3), on January 17, 2002, ME DEP submitted LPP's pre-draft permit terms and conditions in a side-by-side comparison of the alternative requirements with the Pulp and Paper MACT requirements. EPA reviewed the pre-draft title V permit terms and conditions for LPP, identified several issues, and worked closely with ME DEP to ensure that our concerns were addressed. In a letter dated April 15, 2002, the EPA Regional Administrator conditionally approved the pre-draft permit terms and conditions. The approval is conditioned upon LPP meeting a number of requirements, including an initial performance demonstration to document that the alternative approach achieves emission reductions equivalent to or greater than those required by the Pulp and Paper MACT.

To complete the final step, the state will incorporate the approved permit terms and conditions into its draft title V permits for the affected sources (40 CFR 63.94(e)(1)). The permit must be issued or revised according to the provisions of 40 CFR 70.7 before EPA may finally delegate authority to the state to implement alternatives to the Pulp and Paper MACT through issuance of the permit (40 CFR 70.7(a)(1)(ii)). There will be an opportunity for public comment during this process.

Section 112(l) of the CAA and 40 CFR part 63 subpart E allow S/L/T governments to develop and submit EBP programs to EPA for approval. If EPA approves a S/L/T's EBP program, the S/L/T can implement and enforce it “in lieu of” the Pulp and Paper MACT requirements through CAA title V permits. Section 112(l) allows us to approve S/L/T programs if the S/L/T can demonstrate that the program “achieves equivalent or better environmental results” as compared to the federal standards (65 FR at 55810). An EBP program “shall not include authority to set standards less stringent than” the federal standards (CAA Section 112(l)(1)).

Sections 63.91(d) and 63.94(b) specify the criteria that a S/L/T must meet for EPA to approve its EBP program. A request for program approval must: (1) To the extent possible, identify all specific sources or source categories for which the S/L/T is seeking authority to implement and enforce section 112 standards, and if any such sources comprise a subset of sources within the S/L/T's jurisdiction, request delegation for the remainder of the sources in those source categories; (2) to the extent possible, identify all existing and future section 112 emission standards for which the S/L/T is seeking authority to implement and enforce alternative requirements; (3) include a one-time demonstration that the S/L/T has an approved title V operating permit program and that the program permits the affected sources; and (4) meet the requirements in 40 CFR 63.91(d) for demonstrating that adequate authority and resources exist to implement and enforce the S/L/T EBP program. ME DEP's EBP program has met these criteria. See 62 FR 7939 (March 24, 1997) and 66 FR 52874 (December 17, 2001); Request for Approval of State Requirements that Substitute for a Section 112 Rule (September 25, 2001) (letter from James Brooks, Director, Maine DEP Bureau of Air Quality, submitting state's EBP program to EPA).

Furthermore, 40 CFR 63.94(d) specifies the criteria that the alternative requirements must meet for EPA to approve them. EPA's delegation of authority to implement the Pulp and Paper MACT is contingent upon the state including in title V permits terms and conditions that are no less stringent than the federal standard and have been approved by EPA (65 FR at 55817).

Pursuant to 40 CFR 63.94(d), all issued or revised title V permits under an approved program must: (1) Identify the specific terms and conditions with which the source would be required to comply pursuant to its title V permit, and contain permit terms and conditions that reflect all of the requirements of the otherwise applicable federal section 112 requirement; (2) identify specifically how the alternative requirements in the form of permit terms and conditions are “the same as or differ from the requirements in the otherwise applicable Federal section 112 rule”; and (3) provide EPA with detailed documentation that demonstrates that the alternative requirements are at least as stringent as the otherwise applicable federal requirements, as specified in 40 CFR 63.93(b).

In this way, the regulations governing the EBP program ensure that the state's program sets environmental standards at least as stringent as those required under the applicable federal regulations, and that each affected source under the program will achieve compliance no later than would be required by the federal regulations. The EBP program simply allows S/L/Ts to meet these requirements by writing its standards into title V permits after EPA has approved the alternative requirements.

EPA oversees enforcement and compliance with the federal HAP standards in a number of ways through the EBP process.

First, EPA reviews the S/L/T's EBP program and goes through notice and comment rulemaking during the “up-front approval” step. EPA approves the EBP program only after ensuring that the S/L/T has adequate authority and resources to implement and enforce it consistent with CAA requirements.

Second, even after a S/L/T's EBP program has been approved, EPA may object to a title V permit for noncompliance with applicable CAA requirements. CAA Section 505(b)(1); 40 CFR 70.8(c). Under 40 CFR 70.8(a), a state that is authorized to implement the title V permit program must submit to EPA a copy of each permit application (including any application for permit modification), each proposed permit, and each final title V permit. If EPA determines that any proposed permit is not in compliance with applicable requirements under the CAA and objects to issuance of the permit within 45 days of receipt of the proposed permit and all necessary supporting information, the permit cannot be issued (40 CFR 70.8(c)). If the state fails, within 90 days after the date of EPA's objection, to revise and submit a proposed permit in response to the objection, EPA will issue or deny the permit in accordance with the requirements of the federal program promulgated under title V of the CAA (40 CFR 70.8(c)(4)).

In each pre-draft, proposed and final permit, ME DEP is required to indicate prominently that the permit contains alternative section 112 requirements. In addition, “[i]n the notice of pre-draft permit availability, the state shall specifically solicit public comments on the alternative requirements” (40 CFR 63.94(e)(2)).

Third, even after the state issues a title V permit, EPA can terminate, modify, or revoke and reissue a permit upon a finding of good cause (40 CFR 70.7(g)). EPA can reopen and revise a permit under a number of circumstances—( e.g. where new CAA requirements apply), where EPA finds that the permit contains a material mistake, or where EPA determines that the permit must be revised or revoked to assure compliance with applicable requirements (40 CFR 70.7(f)). If EPA finds such cause, it will notify the state and the permittee of this finding in writing (40 CFR 70.7(g)). The state must then forward to EPA a “proposed determination of termination, modification, or revocation and reissuance,” as appropriate (40 CFR 70.7(g)(2)). If the state fails to submit a proposed determination or fails to resolve any objection that EPA makes to the permit, EPA will ultimately terminate, modify, or revoke and reissue the permit (40 CFR 70.7(g)(5)).

Fourth, EPA retains authority to enforce any applicable rule, emission standard or requirement established under CAA section 112 (40 CFR 63.90(d)(2)). In addition, the CAA authorizes EPA to enforce all rules, programs, state or local permits, or other requirements approved under part 63, including the EBP program, and all resulting title V operating permit conditions (40 CFR 63.90(e)).

Finally, whenever EPA determines that a permitting authority is not adequately administering or enforcing a program in accordance with the requirements of the CAA, EPA must notify the state (40 CFR 70.10(b)(1)). If the state's failure to administer or enforce the program persists after such notice the state may be subject to sanctions under section 179(b) of the Act, and EPA may ultimately promulgate, administer, and enforce a federal permit program (40 CFR 70.10(b)(2)).

Thus, at every step in the EBP process, EPA reviews the S/L/T's program and its implementation to ensure that all applicable federal requirements are met. First, EPA ensures that the S/L/T has adequate authority and resources to implement and enforce the EBP program consistent with CAA requirements. Second, EPA reviews the pre-draft title V permit terms and conditions and can object to any proposed permit that fails to set standards at least as stringent as those required under the applicable federal regulations. Third, throughout the life of a title V permit that has been issued, EPA retains authority to terminate, modify, or revoke and reissue it upon a finding of good cause. Fourth, EPA retains authority to enforce the terms and conditions of any title V permit. Finally, whenever EPA determines that a permitting authority is not adequately administering and enforcing a program, EPA is authorized to implement a federal permit program.

On February 7, 2002, in response to the proposed rule, the Penobscot Indian Nation (“the Nation”) submitted comments to EPA. EPA did not receive any other comments.

The Nation's reservation includes over 110 islands in the Penobscot River. Many of these islands are downstream of LPP, including Indian Island, seat of the Nation's government. The discharge from LPP's waste treatment system empties into the Penobscot River.

a. Comment 1: The Nation is concerned about methanol emissions at LPP. Since its tribal reservation lands are located directly in LPP's discharge flow, the Nation believes that LPP's proposal to move its methanol emissions through its wastewater biological treatment system will significantly impact the Nation's natural resources all along the aquatic ecosystems of the river and islands.

Response: EPA recognizes the Nation's concern about methanol releases into the Penobscot River. ME DEP has demonstrated, however, that its EBP program will ensure LPP achieves a level of control at least as stringent as the federal requirements in the Pulp and Paper MACT.

The Pulp and Paper MACT requires kraft pulp mills to control emissions of condensate streams from certain processes (40 CFR 63.440 through 63.459). One control option for kraft pulp mills is to enclose the condensate streams in a closed collection system and route the enclosed streams to a wastewater biological treatment system. Emissions that would have been emitted from an open sewer system can be captured and then destroyed in a biological treatment unit (40 CFR 63.446). The federal regulation requires kraft pulp mills to either: (1) Reduce or destroy the total HAPs by at least 92% or more by weight; or (2) for mills that perform bleaching, to remove 10.2 pounds per ton or more of total HAP per oven dried ton of pulp (ODP) (40 CFR 63.446(e)).

LPP has proposed an alternative to the Pulp and Paper MACT where the condensate streams are enclosed as required in the federal rule, except that the streams will be routed through the facility's wetwell and primary clarifier prior to reaching the biological treatment unit. The wetwell and the primary clarifier are open to the atmosphere and therefore some HAP emissions will be lost from these units. To compensate for the emissions lost from these locations, LPP has completed a sewer upgrade project which includes sending two waste streams not regulated by the Pulp and Paper MACT through the closed collection system. EPA has calculated, based on preliminary data provided by LPP, that the losses from the wetwell and clarifier are less than the extra reductions from LPP's upgraded sewer project and the control of additional waste streams. EPA has issued a conditional approval of the pre-draft permit terms and conditions that requires LPP to conduct an initial performance demonstration to document equivalency. The alternative, therefore, must result in emission reductions that are at least equivalent to those required by the Pulp and Paper MACT.

Whether LPP complies with the Pulp and Paper MACT or with alternative requirements through an approved EBP program, it must destroy HAPs by at least 92% or remove at least 10.2 lb/ODT of HAPs. Therefore, the alternative proposed by LPP will not significantly impact the Nation's natural resources in comparison with continued enforcement of the Pulp and Paper MACT. In addition, adequate monitoring provisions are in place to ensure that when LPP does emit too much methanol into the river or the air, the state and EPA can take appropriate actions to restore the performance required by the MACT.

b. Comment 2: The Nation believes that EPA's approval of ME DEP's program will affect enforcement of and compliance with the federal standards.

Response: As discussed above in section VII, the legal framework governing the EBP program ensures that the state's program sets environmental standards at least as stringent as those required under the applicable federal regulations. EPA has worked closely with ME DEP and LPP to ensure that the alternative requirements for LPP will achieve equivalent or better environmental results. In addition, as discussed in section VIII, EPA's delegation in no way impairs the Agency's authority to oversee and enforce those equivalent requirements. EPA's delegation therefore will not affect enforcement of and compliance with the federal standards.

c. Comment 3: The Nation considers approval of ME DEP's EBP program to be inappropriate in light of EPA's trust responsibility to the Nation.

Response: The federal government has a trust responsibility to federally-recognized Indian tribes that arises from Indian treaties, statutes, executive orders, and the historical relations between the United States and Indian tribes. EPA acknowledges that it must act in accordance with this trust responsibility when taking actions that affect tribal interests, including consulting with affected tribes and assessing tribal interests and concerns in decision making.

EPA believes its action in approving ME DEP's EBP program is consistent with its trust responsibility to the Nation. As discussed above, EPA has determined that approval of ME DEP's EBP program will not have any adverse effect on the Nation's resources because the program will achieve a level of emissions control at least as stringent as the applicable federal standard and is subject to a level of EPA oversight equivalent to the existing part 63 and part 70 programs.

In addition, upon EPA's receipt of this application from ME DEP in September 2001, EPA immediately recognized the need to consult with the Nation in Maine and initiated such discussions in October. EPA corresponded several times with representatives at the Nation's Department of Natural Resources from December through February, and also met with the Nation's representatives in Maine on February 20, 2002.

During the public comment period, the Nation also raised questions as to how EPA would consult with tribes in our oversight of the CAA permit program. The Regional air permitting program and the Nation have agreed to discuss the issue of identifying facilities that EPA expects to have an impact in Indian country and to work toward developing an approach for consultation with Indian tribes in appropriate cases as permits are being developed. EPA will seek and carefully consider the Nation's input during this process.

EPA is approving ME DEP's request to implement and enforce alternative requirements in the form of title V permit terms and conditions for LPP for subpart S.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” This rule is not subject to Executive Order 13045, entitled, “Protection of Children from Environmental Health Risks and Safety Risks,” because it is not an “economically significant” action under Executive Order 12866.

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

EPA has concluded that this final rule may have tribal implications because LPP is located near the Penobscot Nation's territories. This action will not, however, impose substantial direct compliance costs on tribal governments or preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

EPA consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. After carefully considering the Nation's concerns, as discussed above in EPA's response to comments, EPA has concluded that this action will have no adverse effect on tribal resources because the regulations governing the EBP program ensure that the state's program sets environmental standards at least as stringent as those required under the applicable federal regulations. In addition, EPA's delegation in no way impairs the Agency's authority to oversee and enforce the state's equivalent standards.

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

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action simply allows Maine to implement equivalent alternative requirements to replace a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 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), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq. generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 entities with jurisdiction over populations of less than 50,000. This final rule will not have a significant impact on a substantial number of small entities because approvals under 40 CFR 63.94 do not create any new requirements but simply allows the state to implement and enforce permit terms in place of federal requirements that the EPA is already imposing. Therefore, because this 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.

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 annual costs to state, local, or tribal governments in the aggregate, or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector.

This Federal action allows Maine to implement equivalent alternative requirements to replace pre-existing requirements under Federal 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 . This rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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 September 13, 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)).

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their flood-plain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

National Environmental Policy Act This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act The Acting Administrator, Federal Insurance and Mitigation Administration, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim 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.

Executive Order 12612, Federalism This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Availability of Drawings and PADI Document: The drawings and specifications package and the PADI (Procedures for Assembly, Disassembly, and Inspection) Document referred to in this final rule are available for viewing and copying at the DOT Docket's public area, located at Plaza 401, 400 Seventh Street, SW, Washington, D.C. 20590. Copies of these documents are also available from Reprographic Technologies, 9107 Gaither Road, Gaithersburg, MD 20877, (301) 419-5070. These documents may be downloaded from the DOT's document management system website at http://dms.dot.gov. Click on “Search,” then on “Search Form.” Under “Agency,” click on “NHTSA.” Under “Category,” click on “Rulemaking.” Under “Subcategory,” click on “Crashworthiness Drawings and Test Equipment Specifications.” Then click on “Search” and select the desired file.

Most of the issues raised in the petitions were minor and involved technical changes to either the dummy specifications or to the drawing package. In response to the petitions, the agency is making the following minor changes to the dummy specifications: (1) Adding a channel frequency class specification if a rotary potentiometer is used for measuring head rotation; (2) specifying a maximum sternum displacement limit; (3) prohibiting contact between the dummy and any attachments to the test probe during a knee or thorax impact test; and (4) revising the thorax and knee test probe specifications to include provisions for mounting suspension hardware if a cable system is used for impacts, adopt a lower minimum mass moment of inertia, clarify the specification for free air resonant frequency, and add a minimum edge radius for the impact face.

NHTSA's review of the petitions and production dummies also uncovered several minor errors and discrepancies in the figures, tables, and drawings package, which are resolved in this document.

The petitioners also raised more significant issues. They requested that the agency specify a post-test calibration, narrow the temperature range for the torso flexion test, and discontinue using the Hybrid III neck for assessing neck injury criteria. The agency is denying those requests.

Further changes to the dummy will be designated as beta, gamma, etc., to assure that modifications can be easily tracked and identified. The new dummy is defined by a drawing and specification package, a new procedures document for disassembly, assembly and inspection, and performance parameters including associated calibration procedures.

Air bag-related fatalities and injuries to small female drivers seated close to the deploying air bag in low speed crashes have raised serious concerns about the safety of certain air bag designs for this portion of the population. 1 One way to evaluate the protection provided by, and the risks associated with, air bag systems is through the use of human mechanical surrogates with a high degree of biofidelity, such as the family of Hybrid III-type crash test dummies.

On March 1, 2000, NHTSA published a final rule adopting design and performance specifications for a new dummy whose height and weight are representative of a fifth percentile female adult. (65 FR 10961). The specifications were added to 49 CFR Part 572 as Subpart O.

This new dummy (hereinafter referred to as the “HIII-5F dummy”) is capable of accurately assessing the potential for injuries to small-statured adults and teenagers. It is especially needed to ensure that air bags protect small-statured adult females and teenage vehicle occupants in frontal crashes and to minimize the risk of injury during those crashes. The dummy will also provide a means of gathering useful information in a variety of crash environments to better evaluate vehicle safety.

The HIII-5F dummy's specifications adopted in the final rule consist of a drawing package that shows the component parts, the subassemblies, and the assembly of the complete dummy. They also specify materials and material treatment processes, where practical, for all the dummy's component parts, and specify the dummy's instrumentation and instrument installation methods. In addition, the specifications contain a manual specifying disassembly, inspection, and assembly procedures, and a parts list of dummy drawings. These drawings and specifications ensure that the dummies will vary little from each other in their construction and are capable of consistent and repeatable responses in the impact environment.

The final rule also established impact performance criteria for the HIII-5F dummy. These criteria address head, neck, and thorax impact responses. The criteria serve as calibration checks and further assure the kinematic uniformity of the dummy and the absence of structural damage and functional deficiency from previous use.

Adopting the dummy is a step toward assuring the users that it is a stable and useful test device for the assessment of vehicle safety and its readiness to be used in the tests the agency conducts to determine compliance with Federal Motor Vehicle Safety Standards. The use of the HIII-5F dummy in NHTSA compliance tests is being addressed in separate rulemaking proceedings.

NHTSA received petitions for reconsideration of the final rule from DaimlerChrysler; Toyota Motor Corporation; the Alliance of Automobile Manufacturers (whose members are BMW Group, DaimlerChrysler, Fiat, Ford Motor Company, General Motors, Isuzu, Mazda, Mitsubishi Motors, Nissan, Porsche, Toyota, Volkswagen, and Volvo); First Technology Safety Systems (FTSS—a manufacturer of crash test dummies); and Robert A. Denton, Inc. (a manufacturer of crash test dummies and the load cells used in crash test dummies).

Toyota and the Alliance requested that a post-test calibration of the dummy be included in the performance specifications. A post-test calibration is an assessment of whether the dummy conforms to NHTSA specifications after it has been used in a crash test. Toyota and DaimlerChrysler recommended that the agency discontinue using the Hybrid III neck to assess neck injury criteria.

The remainder of the issues raised in the petitions are relatively minor, technical issues. All of the issues are addressed in the Discussion and Analysis section below.

Toyota and the Alliance requested that a post-test calibration of the dummy be included in the performance specifications. Toyota and the Alliance asserted that a post-test calibration is necessary to provide an objective check of the validity of the test dummy data acquired during the test, particularly if the crash test results in an apparent non-compliance. The Alliance stated that, without a post-test calibration, “neither a vehicle manufacturer nor a NHTSA test contractor can determine whether an apparent vehicle non-compliance is due to a test dummy anomaly during a test.”

Toyota and the Alliance previously raised the issue of post-test calibration of dummies in their comments on NHTSA's proposals to establish Hybrid III dummies for 12-month-old children, six-year-old children (HIII-6C), and three-year-old children (HIII-3C), in addition to the Notice of Proposed Rulemaking (NPRM) proposing the HIII-5F dummy. Historically, NHTSA has required that the structural properties of a dummy satisfy the specifications set out in the applicable regulation in every respect both before and after its use in any test in a Federal motor vehicle safety standard. However, in the NPRM proposing the HIII-5F dummy, the agency rejected a post-test dummy calibration provision for the following reasons:

The agency believes this reasoning remains valid. Further, in their petitions for reconsideration, neither Toyota nor the Alliance provided any new information that would support the reversal of the decision not to include a post-test calibration provision. Thus, the agency is denying this part of the Alliance and Toyota petitions.

Toyota expressed concern with the response of the HIII-5F dummy's neck. Toyota first expressed these concerns in its comments to the Supplemental Notice of Proposed Rulemaking updating Standard No. 208, Occupant Crash Protection, published in the Federal Register on November 5, 1999 (64 FR 60556).

In those comments, Toyota stated that in barrier crash testing at about 23 kph without an air bag, the HIII-5F dummy's neck extension exceeded the IARV value. However, the 50th percentile male dummy in the same test at the same speed met the injury criteria. Toyota noted that the incidence rates of cervical spine injury in the real world for a 5th percentile female-statured occupant is not significantly different from those for a 50th percentile male-statured occupant. Therefore, Toyota believed that the HIII-5F dummy's neck response was inappropriately measuring an artifact of the dummy, not the actual response that is related to the injuries that may be seen by a small statured female.

In addition, Toyota claimed to experience non-biofidelic responses of the HIII-5F dummy's neck. Toyota observed a large flexion moment when the dummy's head was slightly extended rearward, and a large extension moment when the dummy's head was slightly flexed forward and the rotational angle of the head was very small. Toyota stated that this indicated the existence of a neck artifact in the HIII-5F dummy.

Due to these concerns, Toyota recommended that the dummy not be used to measure any neck injury criteria associated with the neck extension bending moment until these issues are resolved.

DaimlerChrysler argued that the current biomechanical flexion and extension response corridors of the Hybrid III dummy neck are not applicable to air bag loading. DaimlerChrysler stated that the biomechanical response corridors for the Hybrid III neck were developed based on inertial loading (whiplash loading of seat belt-restrained occupants) of the head-neck rather than direct impact loading by the deploying air bag. DaimlerChrysler claims that impact loading of the head-neck is significantly different because the Hybrid III neck bends in a second-mode, in contrast to the first-mode of bending associated with inertial loading. In this second-mode of bending, the dummy's neck produces substantial moments with very little observed rotation between the head and chest, which places the neck response outside the established biomechanical design corridors. DaimlerChrysler stated that a relaxed human neck cannot produce a resistance moment without significant rotation of the head. Thus, DaimlerChrysler claimed, the dummy's neck is not biofidelic for air bag loading, and the responses can be considered an artifact of current Hybrid III dummy neck design not relevant for assessing human injury. DaimlerChrysler recommended that the agency cease using the HIII-5F dummy to assess neck injuries.

NHTSA agrees that the biomechanical corridors for the Hybrid III neck were based on the inertial loading response of human heads with respect to their torso. However, this does not invalidate the design and use of the neck in other impact applications. Paragraph 4.5.3 of SAE document J885, July 1986, titled “Human Tolerance to Impact Conditions as Related to Motor Vehicle Design” reads:

The agency disagrees with DaimlerChrysler's claim that a relaxed human neck cannot produce a resistance moment without significant rotation of the head. The agency believes that this statement is incorrect for several reasons.

First, to hold the head upright, activation of the cervical musculature is required. Dynamic loading of this activated musculature would produce high visco-elastic reaction forces. In real-world crashes, it is also reasonable to expect that most occupants who see an impending collision may activate additional neck muscles to brace themselves. The Hybrid III dummy neck reflects these reactions by incorporating a stiffness equivalent to 80% muscle tone in its design.

Second, NHTSA's Vehicle Research and Test Center (VRTC) conducted informal tests with several human volunteers and special tests with HIII-5F dummies  2 to determine the average resistance that the neck can generate before noticeable head rotation is observed. Male and female volunteers were loaded at the chin in the inferior-superior direction. Moments were calculated at the level of the occipital condyle before noticeable head rotation was observed. The average female volunteer produced a neck moment of 6.4 to 7.7 Nm at the level of the occipital condyle. The average male volunteer produced a neck moment of 12.2 to 15 Nm. Test results suggested that, before noticeable head rotation has occurred, the moments generated by the female volunteers at the occipital condyle level and those measured by the HIII-5F dummy neck were approximately the same. The measured human moment resistance values are probably at the lower end of the resistance spectra since the volunteers were tested for normal resistance to head motion rather than at a pain-producing level. In addition, the tests were conducted under nearly static loading conditions. Dynamically, visco-elastic properties of the neck structure would be expected to generate a higher resistance to impact-induced motion, and thus a larger moment, with little observable head rotation. These informal tests revealed that the human neck can provide resistance to bending moments at the level of the occipital condyle. Similarly, the moments that the Hybrid III dummy neck produces with little head-to-torso rotation are a reasonably accurate representation of what the total human neck experience would be.

Third, at high loading rates (as generated by air bags), the rotational inertial resistance of the head may be large. In a series of tests using small female cadavers in the driver ISO 2 position, angular accelerations of the head reached a peak of 8000 rad/sec  2 at 10 ms with little rotation of the head. If the moment of inertia of the head were approximately 0.0155 kg-m/sec  2 , the equivalent resistive moment due to inertia at that point in time would be about 125 Nm.

Thus, the facts do not support the DaimlerChrysler argument that the head of the human is free to rotate about the occipital condyle without any resistance under high speed impact conditions. Under a high loading rate and in the presence of partially activated cervical musculature, the human neck can experience large, short duration extension moments in the presence of small angular rotations of the head. Thus, the agency does not believe that the measured forces and moments are an artifact of the dummy.

Fourth, preliminary analysis using modeling techniques has shown that, for an air bag loading to the head and neck, the initial rotation of the head with respect to the chest does not change significantly as the stiffness of the occipital condyle and neck elements are changed. That is to say, in a global sense, the dummy and human necks interact with the deploying air bag in approximately the same way and produce similar kinematics and total loads in the neck. However, at the local level, particularly at the occipital condyle joint, the forces and moments may be somewhat different for the dummy and human neck due to stiffness differences. These forces and moments may be lower than those measured by the dummy due to the lower stiffness of the human spine. However, the critical values for Nij (neck injury criteria formula, found in Standard No. 208, to evaluate neck injury) have already been adjusted to account for this.

Finally, in pendulum impacts to the underside of the chin, the neck is forced into tension-type stretching and extension bending. Within a few milliseconds, the load cells in the upper neck register a large moment. Similarly, a human, under similar impact loading conditions, would have a high probability of fatal injuries, primarily at the upper portion of the neck. The NHTSA Special Crash Investigations (SCI) files, as of January 2002, show a total of twenty-six females with serious or fatal neck injuries due to deploying air bag exposures. Nineteen of these were caused by injuries to the upper neck segments. Only one of the twenty-six clearly showed a failure at the bottom of the cervical spine, while the remaining six showed massive blunt injuries, fractures of cervicals, transactions, etc., that were difficult to assign to any specific section of the neck. SCI describes a typical unrestrained occupant injury when the occupant gets too close to the air bag  3 as follows:

The agency notes that only two additional small female (adult occupant category up to a height of 5 feet 4 inches) neck injuries were added to the SCI data files between March 2000 and January 2002. One injury was sustained in a 1990 model year vehicle, and the other in a 1994 model year vehicle. To the present time, the SCI data contain no neck injuries of small females in vehicles of post-1997 model years.

In summary, the agency believes that the current Hybrid III neck is appropriate for use in both inertial and impact loading scenarios to assess the risk of injury. Further, the compensation factors associated with the current Nij critical values account for the higher forces and moments measured in the dummy due to stiffness differences between the dummy and human necks. Accordingly, the agency is denying this part of the Toyota and DaimlerChrysler petitions.

DaimlerChrysler argued that neck tension alone is the most accurate predictor of injury assessment. DaimlerChrysler stated that the absence of moment as an effective injury predictor may be due to the inability of the Hybrid III dummy family to accurately simulate human neck moment response to the type of loading seen in air bag deployment tests. Thus, DaimlerChrysler recommended that the agency cease using the HIII-5F to assess neck injuries.

DaimlerChrysler submitted similar comments on the advanced air bag (Standard No. 208) Supplemental Notice of Proposed Rulemaking (SNPRM) and NPRM. NHTSA responded to these comments in the final rule on advanced air bags. The agency stated that the biomechanical tests used to reach the conclusion that tension alone is the most accurate predictor of injury were limited to one loading mode of out-of-position testing. In a vehicle environment, the neck is subject to many loading modes, including compression, flexion, extension, lateral bending, and torsion. Biomechanical data have shown that these other loading modes are in fact injurious to the neck. Thus, the agency has chosen to adopt more comprehensive neck injury criteria in the standard.

Further, the biomechanical community addressed the load and moment relationship to injury and came to the consensus judgment that both moments and forces (shear, tension, and compression) are needed for injury assessment purposes. Members of the Alliance and the international automobile importers appear to agree with that conclusion. Also, analysis by NHTSA SCI of occupant injuries in air bag deployment crashes clearly indicates that more than one injury mechanism is involved in neck trauma. Thus, all of the forces and moments must be considered to assure the occupant's safety.

Finally, the agency reviewed the data provided by DaimlerChrysler from a series of out-of-position tests with the HIII-5F dummy. DaimlerChrysler provided data on three types of air bag-to-head interactions with the HIII-5F dummy positioned close to the passenger air bag. DaimlerChrysler characterized the three different interaction patterns in the following manner: (1) The air bag directly loading the head in the fore-and-aft direction pushes the chin of the dummy downward (flexion) and backwards; (2) the air bag “trapped under the chin” pushes the chin upward (extension) and backwards; and (3) the air bag fabric, entrapped in the hollow area between the neck and the jaw, pushes the head upward (extension) and forward.

The agency's review of the data from these tests indicates that dummy and the Nij criteria appear to accurately distinguish injurious from non-injurious loading patterns. For case one, the agency agrees with DaimlerChrysler's description of contact with the air bag on the front of the face at the chin. The applied force of the deploying air bag causes flexion of the head/neck and backwards loading of the head relative to the neck. This loading pattern of low to moderate flexion at the upper cervical spine does not appear to be associated with the type of air bag related neck injuries reported by SCI. The Nij for DaimlerChrysler's case one was 0.7 tension-flexion. The agency believes that the Hybrid III dummy and the Nij injury criteria correctly identify this as a non-injurious mode of interaction.

For case two, DaimlerChrysler characterized the interaction as “air bag trapped under the chin” of the dummy. The agency believes that interaction of the expanding air bag with the under surface of the chin is very similar to the injury patterns seen in SCI cases with upper cervical tension-extension type injuries. The Nij for this case was 2.9 tension-extension. The agency believes that the Hybrid III dummy and the Nij injury criteria correctly identify this as a potentially harmful mode of interaction.

For case three, DaimlerChrysler claimed that air bag fabric was entrapped in the hollow area between the neck and jaw. In this third loading mode, the air bag expands in a wedge-like manner, pushing the neck backwards and at the same time pushing the head upward and dragging it forward along the undersurface of the chin. As with case two, the agency believes that interaction of the expanding air bag with the under surface of the chin is very similar to the injury patterns seen in SCI cases with upper cervical tension-extension type injuries. Further, the addition of a significant direct shear loading to the anterior surface of the neck in case three creates an even greater probability of this loading mode being harmful to humans. The shear loads measured in this third loading mode are more than 5000 N, which are much higher than the injury assessment reference value (IARV) of 3100 N used in the Standard No. 208 sled test and by industry as an IARV for shear load. Although the shear load is not directly included in the Nij formulation, the high shear load along with the tension loads causes the large extension moments which result in an Nij failure with a value of 4.5 in tension-extension. The agency believes that the current Hybrid III dummy neck and the Nij injury criteria correctly identify this as a potentially harmful human mode of interaction.

Examination of vehicle crash data with the HIII-5F dummy seated in the full forward position (at 30 mph into a flat, rigid barrier) suggested that the first two modes of interaction described by DaimlerChrysler are common. Loading mode one results in lower values of Nij, while loading mode two results in higher values of Nij. However, case three, where the load applied by the air bag pulls the head forward, was not observed in vehicle crash tests. Based on the calculated external shear and axial forces applied by the air bag, there were no cases of high shear forces pulling the head forward. Review of the films from these tests indicated that for the low driver Nij cases, the air bag appeared fully or nearly fully deployed upon contact with the occupant's head. There was no contact or only glancing contact with the anterior surface of the dummy neck. In contrast, review of the films for cases with high driver Nij values showed clear interaction of an inflating air bag with the underside of the dummy's chin and neck, as evidenced by chalk transfers onto the air bag fabric, visible folds of the air bag located under the chin, and inflation around the dummy's chin resulting in a dumbbell-type appearance of the air bag. These vehicle crash test data support the appropriateness of the Hybrid III neck and the Nij criteria for identifying injurious air bag loading patterns.

In summary, the agency believes the current neck and Nij are appropriate, sufficient, and needed for the intended purpose. The neck has sufficient sensitivity to objectively differentiate between deploying air bag systems that are inherently safe and those that are unsafe for the small occupant.

Accordingly, NHTSA is denying this part of the DaimlerChrysler petition. The agency will continue to use the current Hybrid III neck and Nij criteria as published in the HIII-5F final rule. However, the agency will conduct further review of out-of-position test data and compare them with SCI cases to determine if there are any loading scenarios that could cause high occipital condyle moments and high Nij's without producing harmful neck injuries.

The Alliance noted that the HIII-5F dummy final rule does not contain a neck skin or neck shield for the dummy. The Alliance stated that without a neck skin or shield, a deploying air bag may get caught on the head-neck structure of the dummy, raising concerns about the validity of the forces and moments being recorded.

The Alliance also noted that the SAE Hybrid III Dummy Family Task Group has evaluated a variety of neck skin concepts. The Task Group has agreed that a neck skin is preferable to no neck skin. Currently, the Task Group is evaluating the effects of various neck skin designs.

Accordingly, the Alliance recommended that the agency add a neck skin to the HIII-5F dummy. The Alliance recommended that the agency choose a neck skin type to avoid compliance issues over neck force-moment measurements because several of its member companies are currently developing their advanced restraint systems using the HIII-5F dummy fitted with different types of neck skin.

DaimlerChrysler conducted a series of static air bag deployment tests to investigate the loading of the head and neck of the HIII-5F dummy during air bag deployment. DaimlerChrysler observed that the SAE recommended head skin and neck shield did not prevent the air bag from being trapped under the chin or behind the jaw of the dummy.

To eliminate this artifact, DaimlerChrysler modified the dummy using two approaches. In its first approach, DaimlerChrysler used a modified head/neck skin. Using neck parts from the Hybrid II 50th percentile male dummy, additional skin and rubber, and a head skin from the HIII-5F dummy, DaimlerChrysler formed a neck surface that extended from the jaw to the upper torso. This modification prevented the air bag from snagging under the chin or behind the jaw and produced an insignificant change in the pendulum extension test. In addition, the moment and rotation responses were within the specified biomechanical extension corridor. However, DaimlerChrysler believed that the flexion response would be compromised due to the bridge effect between the neck skin and the upper torso jacket.

In its second approach, DaimlerChrysler added a pair of aluminum patches to the notch area of the head. This modification prevented the air bag from snagging behind the jaw, but not from under the chin. It did not affect the flexion and extension responses in the standard pendulum calibration tests.

Before issuing the NPRM and final rule for the HIII-5F dummy, NHTSA made an exhaustive effort to evaluate a variety of neck shields. 4 The agency was unable to produce any evidence that neck shields could effectively and consistently reduce some of the high moments associated with aggressive air bags. Thus, the agency did not specify a neck shield for the HIII-5F dummy. The agency remains unconvinced that neck shields will be able to have such effects.

In its petition, DaimlerChrysler noted that it has produced two head-neck shield modifications which prevented the air bag from getting caught under the dummy's chin or behind its jaw. DaimlerChrysler provided a picture of a modified Hybrid II head and an accompanying neck cover without indicating what neck was used for that installation. Inasmuch as the head is not of a Hybrid III dummy, the shield modification for that head may not provide any insight as to the effectiveness of such a modification for the Hybrid III dummy. The agency notes that DaimlerChrysler admitted that one of its neck shield designs might compromise the neck flexion response due to bridge effects between the neck skin and the upper torso jacket, and that the other design did not prevent the air bag from getting caught under the chin.

Based on observations of dummy interactions with deploying air bags and real-world neck injury patterns to small females from Special Crash Investigations photos, the agency believes that the Hybrid III head/neck without the neck skin produces sufficiently realistic interactions with the deploying air bag to indicate either beneficial or overly aggressive effects of the air bag on the human occupants it is designed to protect. Moreover, the agency notes that the petitioners have not provided any feasible suggestions on what type of neck shield they would support to improve its alleged shortcomings. Accordingly, the agency is denying this part of the Alliance and DaimlerChrysler petitions.

Table B of § 572.133 specifies the pendulum pulse for neck flexion and extension. The Alliance and FTSS noted that the table contains a typographical error: the column headings “Extension” and “Flexion” are reversed. The Alliance and FTSS recommended that the agency correct this error.

NHTSA agrees with this recommendation. Accordingly, the agency is switching the order of the “Extension” and “Flexion” column headings.

Section 572.135 specifies procedures for the torso flexion test. The temperature range for the test is specified at 66 to 78 degrees F. The Alliance and FTSS stated that this range is too wide and could result in test variability because of the sensitivity of the dummy materials to temperature. The Alliance noted, for example, that the dummy's lumbar spine should be maintained at 69 to 72 degrees F for proper behavior. The Alliance and FTSS recommended that the agency change the temperature range specification to 69 to 72 degrees F to be consistent with other dummy component tests.

To determine whether there is a need for a narrower temperature range in torso flexion tests, NHTSA's Vehicle Research and Test Center (VRTC) performed two series of temperature sensitivity tests on the HIII-3C dummy: one at a temperature range between 66 and 78 degrees F, and the other between 69 and 72 degrees F. In both series of tests, the average resistance force to flexion was slightly higher at the lower temperature. 5 However, the test results also indicated a resistance force difference of less than 2 pounds over the full temperature range for both series. In addition, plots of force vs. angle showed a very consistent and uniform slope with considerable overlap of measurements over the entire range of temperatures tested, indicating that temperature is not a significant factor. Based on these test data, VRTC concluded that variations in temperature have virtually no influence on the test results due to torso flexion in a crash test.

Although these tests were performed with the HIII-3C dummy and not the HIII-5F dummy, the agency believes that the similarities of design and test methods between the HIII-3C and HIII-5F dummies would lead to the same temperature sensitivity conclusions for the HIII-5F dummy.

To address the petitioners' concern with the “consistency” of temperature specifications, the agency has reviewed all temperature ranges for crash test dummies currently specified in 49 CFR Part 572. Except for the Hybrid III neck and thorax, all specifications for Hybrid II, Hybrid III, and side impact (SID) dummies call for a test temperature range of 66 to 78 degrees F. The narrower temperature specification (69 to 72 degrees F) for the Hybrid III neck and thorax is due to a greater temperature sensitivity of these components, which highly influences the head kinematics and chest compression in crash tests. However, impact responses of the head, torso flexion, and femurs are not sensitive to temperature variations in the 66 to 78 degrees F range, and therefore allow a wider temperature spread. Thus, specifying a narrower temperature range exclusively for the torso flexion test for the HIII-5F dummy would create an inconsistency with respect to all other dummy torso flexion tests in Part 572.

Moreover, to change the temperature specifications to a narrower range for dummies that already have a temperature specification of 66 to 78 degrees F, the agency would have to initiate rulemaking to determine the desirability of such a change. The agency notes that there are a number of dummy users, other than the petitioners, who may neither see a need for nor want to have a narrower temperature range specification. Some test facilities do not have the torso flexion test fixtures set up in a tight temperature control environment. These facilities would have to make capital expenditures to accommodate a narrower range specification.

In addition, the agency would have to provide a rationale for narrowing the temperature specification. Inasmuch as VRTC could not show a need for a narrower temperature range, and the petitioners have not provided data that would support the need for such a change, the agency would not be able to justify the requested revision.

In view of these considerations, the agency is denying this part of the Alliance and FTSS petitions.

Section 572.134 specifies the thorax assembly and test procedure. Paragraph (b)(1) specifies the maximum sternum displacement relative to the spine (compression) and the peak force within this specified compression corridor. The last sentence of that paragraph specifies:

FTSS stated:

FTSS requested that the peak force be specified as an absolute value rather than a percentage. FTSS recommended that the last sentence of paragraph (b)(1) be revised to read:

The HIII-5F final rule states that peak force during the displacement interval of 50-58 mm must be within 3900-4400 N. Applying the five percent criteria specified in paragraph (b)(1) to this results in a force range of 4095-4620 N. FTSS's recommended limit of 4600 N is basically the same as the limit that results from applying the five percent criteria currently specified in paragraph (b)(1). Thus, the agency agrees with FTSS's recommended change.

Accordingly, the agency is revising the last sentence of paragraph (b)(1) to read:

Section 571.137 specifies test conditions and instrumentation. Paragraphs (a) and (b) specify the geometrical and inertial properties for the thorax and knee probes, respectively. Paragraph (a) reads:

Paragraph (b) reads:

The Alliance argued that the requirement in both paragraphs that the probe be symmetric about its longitudinal axis is unrealistic because the pendulum is often fitted with velocity vanes, causing asymmetry. The Alliance recommended that the agency revise the first sentence of both paragraphs to read as follows:

FTSS argued that the test probe definitions are vague and overly restrictive. FTSS claimed that the test probes can be adequately defined by the geometry of the contact area with the dummy together with the mass, center of gravity (CG) location, and moments of inertia of the entire probe.

FTSS expressed concerns about the descriptions of the geometrical and inertial properties for the thorax and knee probes. FTSS stated that it is not clear what “concentric in shape” means because “concentric” means “having the same center” but does not define the shape of an object. FTSS echoed the Alliance's concerns about the requirement that the probe be symmetric about its longitudinal axis. FTSS stated that the necessary addition of cable attachments and velocity vanes means this requirement cannot be met. FTSS noted that these attachments will cause the center of gravity (CG) to be slightly offset from the geometrical center of the probe. Thus, FTSS recommended that the agency specify a dimensional tolerance for the CG offset of 3.5 mm. 6

Finally, FTSS argued that the requirement that no concentric portions of the probe exceed the diameter of the impact face is redundant because mass distribution is controlled by the mass moments of inertia (MMI) specification. Accordingly, FTSS recommended that the agency delete the sentence “No concentric portions of the impact probe may exceed the diameter of the impact face” from both paragraphs and replace the first sentence of both paragraphs with the following sentences:

NHTSA agrees with the Alliance that the test probe definition should include provisions for mounting suspension hardware if a cable system is used for guiding the impactor's trajectory. However, the agency does not agree with FTSS that the possible CG offset from the longitudinal axis is either needed or should be specified. NHTSA believes the specifications in the final rule for MMI in pitch and yaw provide sufficient controls to assure stable kinematics during the probe's free flight and impact with the dummy. Inasmuch as hardware attachments do not meet the definition of concentricity, the agency is excluding them from the concentricity requirement.

Accordingly, NHTSA is revising § 572.137(a) and (b) as specified in section E.7 below. The agency is also adding a paragraph (7) to § 572.134(c) and a paragraph (6) to § 572.136(c) disallowing any contact between hardware attached to the probe and the dummy. The agency believes this is necessary to assure that hardware attached to the probe does not interfere with the dummy. Each paragraph will read as follows:

Paragraph (a) of § 572.137 specifies that the test probe for thoracic impacts have a MMI of 5492 kg-cm 2 (4.86 lbs-in-sec 2 ) in yaw and pitch about the CG. Paragraph (b) specifies that the test probe for knee impacts have a MMI of 622 kg-cm 2 (0.55 lbs-in-sec 2 ) in yaw and pitch about the CG.

The Alliance stated that, for thorax impact probes used at a number of test labs, the MMI values fall below 5492 kg-cm 2 . The Alliance argued that these probes were used to develop the data that formed the basis for the thorax calibration performance corridors adopted by the agency in the final rule.

The Alliance observed that a similar problem exists with the MMI specification for the test probe for knee impacts in paragraph (b). The Alliance claimed that the MMI values of knee impact probes used at a number of test labs fall below 622 kg-cm 2 .

The Alliance recommended that the agency delete the MMI criteria until substantial data are available justifying its need. In the alternative, the Alliance requested that if the cylindrical pendulum described in paragraphs (a) and (b) represents the ideal test probe, and if NHTSA insists on retaining the MMI requirement, the agency change the MMI requirement to 1132.5 kg-cm 2 for the thorax test probe and 156.8 kg-cm 2 for the knee test probe.

FTSS stated that in setting the minimum MMI, “it appears that NHTSA has used the measured values of the physical probes at it's [sic] own test laboratories without a tolerance and without an analysis of a minimum MMI that will ensure satisfactory performance.” FTSS stated that “these numbers are arbitrary and have not been justified.”

FTSS noted that its thorax test probe has a yaw MMI of 5320 kg-cm 2 and a pitch MMI of 5303 kg-cm 2 , both of which fall below the minimum specified in § 572.137(a). FTSS stated that NHTSA has no evidence to suggest that these probes do not provide satisfactory performance. FTSS claimed that the minimum MMI specification, as currently written, will force a re-design of the probe and obsolescence of existing probes without evidence that the design is inadequate. FTSS recommended that the MMI specification be held in abeyance for six months to allow time to develop criteria for the probes and to develop and manufacture re-designed probes as necessary.

NHTSA specified the test probes in generic terms in response to industry comments on the NPRM for the HIII-5F dummy stating that the probe needs to be generic in specification and that the users desire to make them from building blocks, essentially, an assembly of multiple pieces. The commenters also requested that NHTSA not specify the probe by design. NHTSA agreed with this objective but noted that any probe that cannot be specified by design must be specified by engineering parameters, which are mass, stiffness, MMI, CG location, and resonance of the probe's structure. As a result, the agency accepted the commenters' desire for a generic probe and specified the probe in engineering terms.

However, assembling probes from multiple pieces may result in compositions taking many configurations and wide variations of the MMI in yaw and pitch. These wide variations are evident in the Alliance's petition, in which it noted that its member companies have used different probes with MMIs ranging from 4114 to 5320 kg-cm 2 (calculated) for thorax test probes and from 209 to 331 kg-cm 2 (measured) for knee test probes.

To determine the effects on kinematics of low and high inertia test probes, the agency studied the kinematics of a probe with a considerably lower MMI than specified in § 572.137 and compared that with the kinematics of the NHTSA probe having a much higher MMI. The evaluation revealed that the low inertia probe experienced considerable motion instability. In contrast, the agency probe with the MMI specified in the final rule exhibited very stable free flight kinematics. This experiment shows that the use of probes with low MMIs could lead to unstable kinematics. Inasmuch as the response of the dummy in calibration tests is used as a measure of the dummy's repeatability and objectivity, it is important that the test probe kinematics at and during the impact with the dummy not be a source of variability.

In its petition, the Alliance included a table with actual inertia values of test probes used by the industry for both thorax and knee calibrations. The agency believes that these values reflect current industry practice, and, therefore, these are reasonably good grounds for their acceptance. In contrast, the calculated probe values, which are considerably below the inertia values currently used by the industry, have never been evaluated for kinematic stability as used in the specified tests.

As a result, the agency is accepting as the minimum MMI for thorax test probes the lower MMI value of 3646 kg-cm 2 , and for knee test probes the lower MMI value of 209 kg-cm 2 , cited by the Alliance. Accordingly, the agency is changing the MMI specification for thorax test probes in § 572.137(a) to 3646 kg-cm 2 (3.22 lb-in-sec 2 ), and the MMI specification for knee test probes in § 572.137(b) to 209 kg-cm 2 (.177 lb-in-sec 2 ), in yaw and pitch about the CG of the probe.

Since the FTSS thorax probe, with a yaw MMI value of 5320 kg-cm 2 and a pitch MMI value of 5303 kg-cm 2 , meets this specification, the agency is denying the FTSS request to hold the minimum MMI specification in abeyance for six months.

Paragraphs (a) and (b) of § 572.137 both specify that the probe have a free air resonant frequency of not less than 1000 Hz.

The Alliance said that there are insufficient data to support the need for such a specification. The Alliance stated that preliminary analysis of the knee test probe conducted by FTSS demonstrates that the measured free air resonance frequency of a probe currently in use is only 662 Hz. Additional analysis conducted by DaimlerChrysler indicates that there is not frequency content sufficient to excite a resonance, thereby failing to meet the 1000 Hz requirement. Thus, the Alliance recommended that this specification be deleted until substantial data are available to justify it.

FTSS disagreed with the free air resonant frequency specification. FTSS claimed that NHTSA established it without specifying the methods to measure the frequency or providing a rationale for the need of it. FTSS stated that it has analyzed the frequency content of the probe structure used in its calibration laboratories. It said that the results showed that the probe has two primary resonant modes. The first resonant mode is bending of the probe about its CG, causing each end of the probe to translate laterally. FTSS noted that a typical accelerometer, which is mounted at the non-impacted end of the probe, has less than three percent cross-axis sensitivity. Accordingly, if the probe's first mode natural resonance were excited during a dummy test, the effect on the signal of a longitudinally oriented accelerometer would be minimal. FTSS asserted that it may be more appropriate to specify a 1000 Hz resonant frequency limit in the sensitive axis of the accelerometer. However, FTSS recommended that the free air resonant frequency specification be held in abeyance for six months to allow time to develop criteria for the probes and to develop and manufacture re-designed probes as necessary.

The agency notes that commenters on the HIII-6C and HIII-5F dummy NPRMs expressed a desire for generic probe specifications to allow users the freedom to design and build probes in a variety of ways, including constructing them from building blocks. As a result, the agency developed a generic engineering specification and inserted it in the final rules for the HIII-6C, HIII-5F, and HIII-3C dummies.

The agency believes that the resonant frequency specification is necessary for three reasons: (1) Because the intent of users is to build the probe from multiple pieces and of unspecified material, the natural resonance of the probe is the only reliable indicator to assure that the probe will be of sufficient structural rigidity and capable of repeatable response; (2) the specification will assure that a multiple piece probe will not produce separate interactions between its constituent parts; and (3) the specification will assure that the mounting structure for the accelerometer is sufficiently rigid and will not affect the accelerometer readings.

NHTSA does not agree with the Alliance comment that the resonance specification is unnecessary. A multiple piece impact probe, if improperly constructed, may contain a series of resonances along its longitudinal axis. The 1000 Hz minimum specification would preclude use of such a probe.

Moreover, in its petition, the Alliance indicated that the probe's free air resonance frequency is 662 Hz, which falls below the minimum specification of 1000 Hz. However, the agency's review of the Alliance data indicated the existence of at least two resonances: one around 800 Hz and the other around 7.5 kHz. The 800 Hz resonance is due to the first mode of beam bending around the CG of the probe. The 7.5 kHz is the second mode natural resonance of the probe along its longitudinal axis.

The agency agrees with the FTSS observation that beam bending is perpendicular to the longitudinal axis of the probe and should have little, if any, effect on the output of the longitudinally-oriented accelerometer (unless the accelerometer has a large cross axis sensitivity). In contrast, resonance along the axis of the probe is of primary interest in thorax and knee tests. NHTSA would not be concerned if the probe's resonance in the longitudinal axis of the impactor were at 7.5 kHz. This exceeds the agency's specification of 1 kHz. However, if the probe's resonance were lower than 1 kHz, it could affect the measured impact response.

NHTSA concludes that the Alliance's argument does not demonstrate the irrelevance of the minimum natural free air resonance frequency for undefined probes. Instead, the Alliance argument demonstrates that the agency should specify which resonance mode it is defining. Thus, the agency is revising the last sentence in “572.137(a) and (b) to read:

Paragraphs (a) and (b) of § 572.137 both specify that one-third of the weight of suspension cables and any attachments to the impact probe must be included in the calculation of mass, and that such components may not exceed three percent of the total weight of the test probe. There were no comments regarding this specification. However, the specifications for the HIII-3C and CRABI dummies specify that one-third of the weight of suspension cables and any attachments to the impact probe may not exceed five percent of the total weight of the test probe. To maintain consistency in specifications for the entire H-III dummy family, the agency is revising the specification in paragraphs (a) and (b) of § 572.137 to five percent of the total weight of the test probe. This change has been made as specified in section E.7 below.

Section 572.137(b) specifies that the test probe for knee impacts have a mass of 2.99 ± 0.01 kg (6.6 ± 0.022 lbs).

The Alliance and FTSS argued that the probe mass tolerance of ± 0.01 kg (± 0.022 lb) is not practical. The Alliance stated that some accelerometers weigh approximately 0.02 lb. FTSS stated that a mass tolerance of 0.01 kg is too small to be practically measured. Thus, the Alliance and FTSS recommended that the agency increase the tolerance to ± 0.023 kg (± 0.05 lb) to account for both slight mass deviations and additional instrumentation, such as accelerometers.

NHTSA agrees that the mass tolerance is too tight. Accelerometers used on the probe do not have to be the same as the very low mass accelerometers used on the dummy. Since the weight of some accelerometers can be as high as 0.02 lb, the agency must account for this additional variation. Accordingly, the agency is changing the mass tolerance in ±572.137(b) to ± 0.023 kg (± 0.05 lb).

Section 572.137(a) specifies that the edge radius of the thorax probe impact face is a maximum of 12.7 mm. Both the Alliance and FTSS stated that specifying a maximum edge radius allows for smaller radii, which could affect the probe's interaction with the dummy due to differences in initial contact area. The Alliance and FTSS recommended that the agency delete the word “maximum”.

NHTSA agrees with these concerns. At its extreme, a maximum radius specification allows the edge of the probe face to have no radius and produce a sharp corner. Such a probe face may affect the probe's interaction with the dummy if the alignment at impact was not perfect. However, the agency does not agree with the Alliance and FTSS recommendation of specifying an exact radius. This could cause substantial tolerancing problems over even small variations of the edge radius. To overcome these concerns, the agency is adding a minimum edge radius of 7.6 mm (0.3 in) to both the thorax and knee impact probe specifications to assure that the probes will always have an edge radius that is practical to hold and will not affect the probes' interaction with the dummy.

In view of the discussion above, the agency is revising paragraphs (a) and (b) of § 572.137 to read as follows:

Section 572.137(m)(3)(ii) specifies CFC Class 1000 filters for conditioning the spine and pendulum acceleration signals. The Alliance and FTSS recommended that the agency change this specification to Class 180 because Class 1000 is too high for the pendulum acceleration measurement during impact with the dummy, and to remain consistent with SAE-J211.

NHTSA agrees with the Alliance and FTSS comments regarding § 572.137(m)(3)(ii). The current specification of Class 1000 is too high for the intended application and is not consistent with SAE-J211 Recommended Practice and similar specifications in the final rules for other dummies. The agency notes that it is a typographical error. Accordingly, the agency is correcting this error by revising “572.137(m)(3)(ii) to read as follows:

(ii) Spine and pendulum accelerations—Class 180

Section 572.137(m)(3)(iii) specifies the sternum deflection signal filters at Class 180. The Alliance recommended that the agency change this specification to Class 600 to remain consistent with SAE-J211.

NHTSA notes that the Class 180 specification in “572.137(m)(3)(iii) is in line with the specification for the Hybrid III 50th percentile male dummy. The agency believes this specification is sufficient for direct chest deflection measurement. However, Class 600 data are needed if a V*C measurement is to be made. NHTSA does not require the measurement of V*C, but the agency has no objection to filtering the data to a higher CFC class since that level data is suitable for both the deflection and V*C measurements. Accordingly, the agency is revising § 572.137(m)(3)(iii) to read as follows:

(iii) Sternum deflection—Class 600

Section 572.137(m)(6) specifies the femur forces filters at Class 600. The Alliance and FTSS recommended that the agency revise this paragraph to include a knee pendulum filter, also of Class 600, to remain consistent with SAE-J211.

NHTSA notes that currently § 572.137(m)(6) reads: “Femur forces—Class 600.” Since the femur force is calculated during calibration from the pendulum based accelerometer, the agency assumed it was clear that the Class 600 also applied to the impactor mounted accelerometer data. Apparently, it was not. Accordingly, the agency is revising § 572.137(m)(6) to read as follows:

(6) Femur forces and knee pendulum—Class 600

Section 572.137(m)(2) specifies the neck signal filters. The Alliance and FTSS noted that it does not specify a filter class for the neck test rotation potentiometers. The Alliance and FTSS recommended that the agency add a paragraph (iv) to that section to read as follows:

(iv) Rotation potentiometer—Class 60.

In § 572.137(m)(2), NHTSA did not specify use of mechanical test fixtures, including potentiometers, to measure head rotation in the specified head-neck tests. The agency believes that there are several methods of measuring this, and there is no reason why a specific method should limit the user's choice. The Alliance and FTSS recommended that the agency revise § 572.137(m)(2) to specify a channel class to provide guidance for those instances in which a rotary potentiometer is used to measure the amount of head rotation by adding:

(iv) Rotation potentiometer—Class 60.

In its petitions concerning the HIII-6C final rule, the Alliance noted that industry users appear to have reached a consensus that the Society of Automotive Engineers (SAE) recommended practice J211 Channel Frequency Class (CFC) 60 specification is appropriate if a potentiometer is used to measure head rotation. In addition, the VRTC used the CFC 60 to filter head rotation data measured by rotary potentiometers to establish the certification requirements for the dummies. VRTC review of raw data showed absence of high frequency signals that would obviate the need for a specification greater than CFC 60.

Consequently, the agency has no objections to specifying Channel Frequency Class 60 for this application if a rotary potentiometer is used for measuring head rotation. The agency is revising “572.137(m)(2) to add the following paragraph:

(iv) Rotation potentiometer—Class 60 (optional).

The drawing package contains seven drawings that provide generic specifications for load cells used within the HIII-5F dummy. Each of these drawings specifies that the load cell electrical output/input sensitivity at capacity be 1.0 mV/V MIN.

Denton stated that many of the existing load cells that it has built for these applications have a nominal sensitivity specification of 1.0 mV/V channels. Due to manufacturing variations, load cells may have a sensitivity above or below the 1.0 mV/V level. Denton stated that many existing load cells would be rendered obsolete by this requirement. Denton argued that load cells with outputs slightly below 1.0 mV/V have functioned satisfactorily in these applications for many years. Denton also stated that NHTSA did not provide any data to justify this requirement. Thus, Denton requested that this specification be changed to 0.75 mV/V MIN.

NHTSA is granting Denton's request. The agency notes that this change is nominal and will have no detrimental effects on the quality of the resulting data channel. Accordingly, the agency is changing this specification in Drawings SA572-S11, SA572-S14, SA572-S15, SA572-S29, SA572-S16-L&R, SA572-S27, and SA572-S28 from 1.0 mV/V MIN to 0.75 mV/V MIN.

Drawing SA572-S15 for the Small Female Lumbar Spine Load Cell specifies 5000 Hz as the minimum free air resonance specification. It also specifies that the lumbar load cell force measurement use a Channel Frequency Class (CFC) of 1000.

Denton requested that the agency change the free air resonance specification to 3000 Hz. Denton stated that the measured free air resonance of its load cell is below 5000 Hz and that it has functioned well for years. Denton argued that if the agency did not change this specification, many, if not all, existing lumbar spine load cells currently in use would be rendered obsolete.

Denton also requested that the agency change the CFC specification to Class 600 for data signals generated by the lumbar load cell. Denton noted that there is no rationale for the Class 1000 specification for the force measurement and that it was chosen by default. Denton stated that it is extremely unlikely that any forces or moments will come even close to exceeding Class 600 because the top of the load cell is attached to a rubber lumbar spine, and the lumbar spine will be unable to transmit high frequencies.

NHTSA is granting both of Denton's requests. As Denton noted, the agency chose the minimum free air resonance specification and CFC by default. Accordingly, the agency is revising Drawing SA572-S15 by changing the minimum free air resonance specification from 5000 Hz to 3000 Hz and changing the lumbar force CFC classification from Class 1000 to Class 600.

The Alliance and FTSS found several errors in Figures O1, O2, and O3. Denton noted several specification errors in Drawing SA572-S14. In the process of inspecting production dummies, the VRTC noted additional dimensional discrepancies in three of the dummy drawings. The agency believes that these discrepancies are of little consequence to the dummy functioning but must be adjusted to reflect the dummies being built with production equipment. In this document, the agency is correcting the errors in these drawings.

The Alliance noted that Figure O1 ( Neck Flexion Test Setup Specifications ) is missing the label for the lower neck-adjusting bracket. The Alliance also noted that the second label for the neck-adjusting bracket in Figure O2 ( Neck Extension Test Setup Specifications ) is incorrect. It should read: “BRACKET—NECK ADJUSTING—UPPER (P/N 880105-207).”

The Alliance and FTSS noted that some of the language in Figure O3 ( Thorax Impact Test Setup Specifications ) does not conform to the language in the final rule text. Specifically, the Alliance and FTSS recommended that the agency change the tolerance for the test probe alignment from ± 0.05 degrees to ± 0.5 degrees, and the tolerance for the impact probe weight from ± 0.01 kg (0.02 lb) to ± 0.023 kg (0.05 lb) to conform to the text of the final rule. Finally, the Alliance and FTSS stated that Figure O3 does not contain a pelvic angle measurement. They noted that the Society for Automotive Engineers (SAE) Engineering Aid 25 specifies that the pelvis should be inclined rearward 7 ± 2 degrees with respect to the horizontal. They recommended that this angle be added to the note Pelvic Angle Reference Surface” in Figure O3 so that testers will not be required to force the dummy's pelvis into an unnatural orientation.

NHTSA agrees with all of these recommendations. The suggested changes reflect errors in the figures. Accordingly, the agency is revising Figure O1 by adding the missing label for the lower neck-adjusting bracket. That label will read “BRACKET—NECK ADJUSTING—LOWER (P/N 880105-208).” The agency is also revising the second label for the neck-adjusting bracket in Figure O2 to read: BRACKET—NECK ADJUSTING—UPPER (P/N 880105-207). The agency is changing the tolerance for the test probe alignment in Figure O3 from ± 0.05 degrees to ± 0.5 degrees, and the tolerance for the impact probe weight in Figures O3 and O5 from ± 0.01 kg (0.02 lb) to ± 0.023 kg (0.05 lb). Finally, the agency is adding the angle 7 ± 2 degrees from the horizontal to the note Pelvic Angle Reference Surface in Figure O3.

In reviewing Figure O4, NHTSA discovered that it had failed to specify the weight of the pull mechanism  7 used in the torso flexion test. The Hybrid III Six- and Three-Year-Old dummy requirements each specify the weight of the pull mechanism for the torso flexion test. To be consistent with those dummy requirements and assure test repeatability, the agency is specifying that the weight of the pull mechanism must be less than or equal to 1.07 kg (2.35 lb).

Accordingly, the agency is adding the following note to Figure O4: “Combined weight of load cell, loading adaptor bracket, pull cable, and attachment hardware 1.07 kg (2.35 lb).

This drawing provides generic specifications for the uniaxial femur load cells for use within the HIII-5F dummy. The drawing specifies a diameter dimension of 1.722 inches/4.375 millimeters, with a tolerance of ±0.005 inch, for the load cell.

Denton said that there are three errors in this specification. First, the 1.722 inches should be 1.75 inches. Denton said that its Model 2121 femur, which has been used for this application worldwide (including by NHTSA) for many years, has a diameter of 1.75 inches. Denton argued that if NHTSA required a diameter of 1.722 inches, all existing femur force transducers would be rendered obsolete. As a result, the agency and its contractors, and other test facilities worldwide, would have to purchase all new femur force transducers. Denton also argued that this dimension is irrelevant to the performance of the load cell. Thus, Denton requested that the diameter dimension be changed to 1.75 inches.

Second, Denton argued that the ±0.005 inch tolerance is unnecessarily tight for the diameter dimension. Denton requested that the tolerance be changed to two decimal places, or ±0.01 inch.

Third, Denton noted that the metric conversion for 1.722 inches is stated incorrectly in the drawing. It should be 44.45, rather than 4.375, millimeters.

NHTSA agrees with all three of Denton's recommendations. The agency notes that the 1.722 inch specification and metric conversion for 1.722 inches were errors, and the agency is correcting them in this document. The agency also agrees that the tolerance specification is unnecessarily tight. For the load cells used in the Child Restraint Air Bag Interaction (CRABI) dummy, NHTSA has already changed the tolerance specification for diameter dimensions to two decimal places. For the sake of consistency, the agency is changing the tolerance specification of the HIII-5F load cell diameter dimension to two decimal places as well. Accordingly, the agency is revising Drawing SA572-S14 by changing: (1) The load cell diameter dimension to 1.75 inches; (2) the tolerance to ±0.01 inch; and (3) the metric conversion for 1.75 inches to 44.45 millimeters.

In inspecting production dummies, the VRTC noted a discrepancy in the height reference dimension “AA” of sheet 5 of 6 of drawing 880105. This dimension locates the measurement of the maximum chest circumference “Y” of the dummy with respect to the seating surface. Currently, the dimension is 12.0 ±0.20 inches.

The agency is increasing that dimension to 13.6 ±0.50 inches. This increase is needed to allow for stack up of dimensional tolerances of dummy components from the bottom of the buttocks to the shoulder structure and for variations in the dummy's torso posture. The changes will appear in the modified drawing as revision “J”.

The agency's review of drawing 880105-000 (sheet 3 of 6) also revealed an erroneous callout for Item #4 of the parts list. Item #4 specifies part #9000224, Screw, 10-24 x 5/8 , SHCS. However, the agency has determined that a 5/8 inch length screw is too long and will bottom-out before securely fastening the head accelerometer mount to the skull casting. The correct length of screw is 3/8 inch. Accordingly, the correct callout for Item #4 is part #9000487, 10-24 x 3/8 , SHCS. The agency is revising Print 880105-000 sheet 3 of 6 to reflect this correction under revision “I”.

The VRTC also noted a discrepancy in the abdominal insert drawing in drawing 880105-434. Currently, the abdominal drawing specifies, on the posterior side of the abdomen, a semicircular relief denoted by the R 3.62 and R 1.90 dimensions and shape.

Instead, the abdominal drawing should specify a rectangular shaped cutout on the posterior side of the abdomen to fit around the chest deflection transducers mounted bi-laterally next to the lumbar spine. All of NHTSA's evaluation, calibration, repeatability, and reproducibility work, including vehicle tests, have been performed with the HIII-5F dummy containing an abdomen with the rectangular cutout. If the abdominal insert were fabricated according to the dimensions and shape in the current drawing, the agency could not be assured that the dummy response would be consistent with these underlying tests.

Accordingly, the agency has revised the abdominal insert drawing in drawing 880105-434 by replacing the semicircular cutout shape with a rectangular cutout shape 4.45 inches wide and 2.00 inches long in the fore and aft direction from the posterior side, and 1.87 inches deep from the top surface of the abdomen. The change will appear in the modified drawing as revision “C”.

Finally, the VRTC noted a discrepancy in the datum line in Drawing 880105-440, Molded Pelvic Assembly. The drawing dimension with respect to the datum line adds up to an overall depth of 10 inches in the fore-aft direction. As measured, however, the actual parts on several FTSS and Denton dummies have an overall depth of 9.25 inches. These dummies provide a good fit between the pelvis and thigh flesh.

The VRTC has inspected several pelvis assemblies and determined that the 1.00 inch dimension to the end of the pelvis flesh at the interface with the thigh flesh is incorrectly specified in the drawing. It is not needed, if the overall fore and aft depth of 9.25 inches of the pelvis is specified. Thus, control of the pelvis to a depth of 9.25 inches eliminates a potential assembly interference problem and provides a good fit between the pelvis and thigh flesh during the attachment of the femur to the pelvis. Accordingly, the agency is removing the 1.00 inch dimension from the end of the pelvis flesh and adding an overall depth dimension of 9.25 inches. The changes will appear in the modified drawing as revision “B”.

In reviewing the drawings package, VRTC discovered several missing or misplaced notes and call out errors. To correct these errors, the agency is revising the drawings as shown in the following table. The revised drawings package contains a drawing revision list (Drawing Number SA572-880105DRL-1) describing all these changes.

Currently, the PADI (Procedures for Assembly, Disassembly, and Inspection) Document specifies that the dummy shoes shall be “low dress black oxfords, size 8E that met MIL-S-13192P.” These specifications must be updated to be consistent with the specifications in the Standard No. 208 Advanced Air Bag NPRM. Accordingly, the agency is revising the fifth sentence on page four of the PADI Document (under the Clothing section) to read as follows:

The shoes are women's low dress black oxfords, size 7 1/2

W that meet MIL-S21711E.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866. This rule also is not considered to be significant under the Department of Transportation's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

This document amends 49 CFR Part 572 by making minor amendments to the design and performance specifications for a new 5th percentile female dummy that the agency may later incorporate into Federal motor vehicle safety standards. This document does not impose requirements on anyone.

The cost of an uninstrumented 5th percentile female dummy is approximately $33,400. Instrumentation would add from $29,000 to $99,100 to the cost, depending on the amount of instrumentation the user chooses to employ. This document does not add any costs to the cost of the dummy or any instrumentation. Thus, the economic impacts of this document are minimal, and no further regulatory evaluation is necessary.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

I have considered the effects of this rule under the Regulatory Flexibility Act and certify that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not impose or rescind any requirements. This rule makes relatively minor amendments to the design and performance specifications for a new 5th percentile female dummy that the agency may later incorporate into Federal motor vehicle safety standards. It does not impose requirements on anyone. The Regulatory Flexibility Act does not, therefore, require a regulatory flexibility analysis.

NHTSA has analyzed this rule for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.

Executive Order 13132 requires NHTSA 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, the agency may not issue a regulation with 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, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.

NHTSA has analyzed this rule in accordance with the principles and criteria set forth in Executive Order 13132. 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. This rule makes relatively minor amendments to the design and performance specifications for a new 5th percentile female dummy that the agency may later incorporate into Federal motor vehicle safety standards. The agency has determined that this rule does not have sufficient federalism implications to warrant consultation and the preparation of a Federalism Assessment.

This rule will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid control number from the Office of Management and Budget (OMB). This rule does not have any requirements that are considered to be information collection requirements as defined by the OMB in 5 CFR Part 1320.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in our regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

The 5th percentile female test dummy that is the subject of this document was developed under the auspices of the SAE. All relevant SAE standards were reviewed as part of the development process. The following voluntary consensus standards have been used in developing the dummy: SAE Recommended Practice J211, Rev. Mar 95 “Instrumentation for Impact Tests;” and SAE J1733 of 1994-12 “Sign Convention for Vehicle Crash Testing, Surface Vehicle Information Report.”

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, Federal requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This rule does not impose any unfunded mandates under the UMRA. This rule does not meet the definition of a Federal mandate because it does not impose requirements on anyone. This rule makes relatively minor amendments to the design and performance specifications for a new 5th percentile female dummy that the agency may later incorporate into Federal motor vehicle safety standards. It will not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

The Area 2A Catch Sharing Plan for Pacific halibut off Washington, Oregon, and California is implemented in the annual management measures for the Pacific halibut fisheries published on March 20, 2002 (67 FR 12885). Those regulations established the 2002 area quota for the south coast of Washington (Queets River to Leadbetter Point) fishery of 42,739 lb (19.4 mt) and the related management measures. The all-depth sport fishery in this area is scheduled for 5 days per week (Sunday through Thursday), and the nearshore fishery is scheduled for 7 days per week.

Over the last 4 weeks, the pace of the all-depth halibut fishery has slowed, due in part to a shift in fishing effort into the recreational chinook salmon fishery, which was open from May 25 through June 16 off the Washington coast. Effort in the sport halibut fishery is expected to remain low due to the opening of the recreational coho salmon fishery in the Westport, WA area. The coho fishery starts June 30 and lasts 5 days per week (Sunday through Thursday) through the earlier of September 8 or quota attainment.

As of June 27, 2002, a total of 1,919 lb (0.87 mt) of halibut were landed over the last 4 weeks compared to 31,390 lb (14.24 mt) over the first 4 weeks of the fishery. The quota left remaining for the Washington south coast fishery (both all-depth and nearshore) is 9,430 lb (4.28 mt). Although the pace of the south coast all-depth fishery has slowed, Washington Department of Fish and Wildlife (WDFW), the agency that directly monitors the sport halibut fishery off Washington’s coast, is concerned about leaving the entire south coast all-depth fishery open 5 days per week because of potential rockfish bycatch in the halibut sport fishery. WDFW is trying to keep bycatch of non-target species in the recreational fisheries below approximately 6,614 lb (3 mt) statewide. At the end of May, bycatch of non-target species was estimated to be at approximately 3,527 lb (1.6 mt). Bycatch of yelloweye rockfish, an overfished groundfish species, is of particular concern in the sport halibut fisheries. In order to keep the south coast all-depth fishery open while reducing the likelihood that the fishery will intercept yelloweye rockfish, WDFW recommended to NMFS and the International Pacific Halibut Commission (IPHC) that the all-depth fishery be changed from a 5 days per week fishery (Sunday through Thursday - the same open days as the recreational coho salmon fishery) to a 2 day per week fishery (Friday and Saturday). While this change would reduce the days of the week that a vessel could fish for halibut, thus reducing the chance of intercepting yelloweye rockfish, it would also allow more opportunity for sport boats to fish because they could target halibut on days when the salmon fishery is closed.

In addition to a reduction in fishing days per week, WDFW proposed to restrict the all-depth area that can be fished to the following two areas: (1) an area known as the “Westport, WA halibut hot spot” and (2) an area from Grays Harbor, WA south to Leadbetter Point, WA. NMFS proposes to allow only these areas to remain open because it would allow fishing for halibut in areas that have minimal yelloweye rockfish bycatch. The Westport, WA halibut hot spot is a three mile by three mile area approximately 34 miles offshore defined by the following coordinates: 47°19′ N. lat. by 124°53′ W. long., 47°19′ N. lat. by 124°48′ W. long., 47°16′ N. lat. by 124°53′ W. long., and 47°16′ N. lat. by 124°48′ W. long. Because the Westport, WA halibut hot spot is farther offshore, it is primarily accessible to charter boats and larger private vessels. In order to allow equal halibut opportunity to smaller private vessels along the south coast of Washington, WDFW also proposed to open an area closer to shore within an area defined by the following coordinates: 47°00' N. lat. south to 46°38′10″ N. lat.(Leadbetter Point, WA), and east of 124°27 W. long.

Section 25 of the 2002 Pacific halibut regulations provides NMFS with the authority to make certain inseason management changes, provided that the action is necessary to allow allocation objectives to be met, and that the action will not result in exceeding the catch limit for the area. The Catch Sharing Plan’s structuring objective for the Washington south coast area is to maximize the season length, while maintaining a quality fishing experience.

The Washington south coast all-depth subarea would be changed from a 5 days per week (Sunday through Thursday) fishery to a 2 days per week (Friday and Saturday) fishery. Additionally, sport fishing for halibut in this area would be restricted to an area known as the Westport, WA halibut hot spot and an area closer to shore between Grays Harbor, WA and Leadbetter Point, WA. The purpose of leaving these areas open is to lengthen the season by allowing fishers access to areas of more abundant halibut while reducing the likelihood of yelloweye rockfish interception.

In consultation with the WDFW and the IPHC, NMFS has determined that restricting the Washington south coast all-depth subarea to halibut fishing only on Fridays and Saturdays in the areas defined above meets the Catch Sharing Plan’s objective of providing a quality fishing experience without allowing the fishery to exceed the Washington south coast halibut quota. Additionally, this action is expected to protect an overfished groundfish species, yelloweye rockfish.

For the reasons stated above, NMFS announces the following change to the 2002 annual management measures (67 FR 12885, March 20, 2002).

1. On page 12895, in section 24. Sport Fishing for Halibut , paragraph (4)(b)(iii)(A) is revised to read as follows: