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

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

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

On May 28, 2002, Israel reported a suspected case of BSE in a native-born animal, and on June 4, 2002, Israel confirmed that diagnosis in a report to the Office International des Epizooties. Therefore, in order to prevent the introduction of BSE into the United States, we are amending § 94.18(a)(1) by adding Israel to the list of regions where BSE is known to exist. The effect of this action is a restriction on the importation of ruminants that have been in Israel and on the importation of meat, meat products, and certain other products and byproducts of ruminants that have been in Israel. We are making this amendment effective retroactively to June 4, 2002, which is the date that BSE was confirmed in a native-born animal in that region.

In this rule, we are also updating the authority citation for 9 CFR part 94 to reflect the enactment of the Animal Health Protection Act (7 U.S.C. 8301 et seq. ).

This rulemaking is necessary on an emergency basis to prevent the introduction of BSE into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

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

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

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to June 4, 2002; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

With this rule, the SBA revises 13 CFR part 134, the rules of procedure governing cases before the Office of Hearings and Appeals, improving and clarifying various procedures; and makes conforming changes to the sections of 13 CFR part 121, the Small Business Size Regulations, and 13 CFR part 124, the 8(a) Business Development program, that relate to OHA appeals. The SBA proposed this rule in the Federal Register , 67 FR 11057 (Proposed Rule), on March 12, 2002. The Proposed Rule included “Highlights of [the] Proposed Rule,” 67 FR at 11057-11058; a “Section-by-Section Analysis,” 67 FR at 11058-11062; the amendatory instructions and text, 67 FR at 11063-11068; and a request for comments, 67 FR at 11057.

The SBA published two corrections to the Proposed Rule: The first, 67 FR 13108, on March 21, 2002, corrected the Regulation Identifier Number (RIN) to that shown here. The second, 67 FR 13294, on March 22, 2002, clarified the amendatory text for § 134.313; and clarified amendatory instruction 50.c., pertaining to § 134.406(c).

During the Proposed Rule's 30-day comment period, SBA received no comments regarding the proposed changes. SBA itself corrected some errors of grammar, form, or punctuation not enumerated here. SBA also found several provisions that were inaccurate or unclear. These provisions are discussed below, in their numerical order.

In the amendatory text for § 124.305(c) (appeal of a suspension from the 8(a) Program), Proposed Rule, 67 FR at 11063, “applicant concern” should read “Participant.” This rule corrects an error contained in 63 FR 35726, 35752 (1998 Rule).

In addition to the changes to § 134.202 already discussed in the Proposed Rule, 67 FR at 11059, this rule corrects a typographical error contained in the 1998 Rule at 35766, amendatory instruction 8 (amending § 134.202(d)): “§ 134.305” (concerning size appeal petitions) should read “§ 124.305” (addressing suspension and suspension appeals). The amendatory text for § 134.202(a)(4), Proposed Rule, 67 FR at 11064, included this correction, but the analysis did not explain it.

The analysis for § 134.211(b) states that the rule “would require the moving party, in most motions, to obtain and to state, in the motion itself, the other parties' positions on the motion.” Proposed Rule, 67 FR at 11060. Similarly, the amendatory text states that the moving party “must make reasonable efforts to contact all non-moving parties prior to filing the motion to determine whether they oppose the motion, and must set forth in the motion all non-moving parties' positions.” Proposed Rule, 67 FR at 11065-11066. This language could be construed to require the moving party to detail each non-moving party's position on the motion; however, the SBA did not intend that. As the Proposed Rule states, SBA's intent is to avoid a 20-day delay to await a response that, if no one opposes the motion, is unnecessary. Proposed Rule, 67 FR at 11060. Therefore, this rule clarifies that, before filing the motion, the moving party must make reasonable efforts to contact any non-moving party to determine whether the party will oppose the motion; and then state in the motion, as to each non-moving party, either whether the party plans to oppose the motion or what efforts the moving party made to learn whether that party plans to oppose the motion.

SBA has determined that this rule has no significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule revises some of the rules of practice for SBA administrative proceedings to simplify those rules and make them easier for the few small businesses that engage in administrative litigation with the SBA to understand and to use. Accordingly, this rule is purely procedural and does not affect the operations of small entities.

For purposes of the Paperwork Reduction Act (44 U.S.C. Ch. 35), SBA certifies that this rule imposes no new reporting or record-keeping requirements on firms. This rule revises certain procedures for administrative litigation, and those revisions do not require firms to maintain any records or make any reports to SBA they do not already maintain or make.

OMB has determined this rule is not a “significant” regulatory action within the meaning of Executive Order 12866. The rule is merely procedural and, therefore, will not have an annual economic effect of $100 million or more or have any adverse effect on any sector of the economy or on State, local, or tribal governments or communities.

For purposes of Executive Order 12988, SBA certifies that it has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3 of that Order. This action has no retroactive or preemptive action.

For purposes of Executive Order 13132, SBA certifies that this rule has no federalism implications warranting the preparation of a Federalism Assessment.

The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, recently notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC advises that, on one airplane, a loose clutch nut has been found on the clutch assembly of the primary horizontal stabilizer actuator (HSA). Investigation revealed that none of the locking tabs on the key washer for the HSA clutch assembly were bent into the locking groove of the clutch nut. This condition, if not corrected, could result in a loose or disengaged clutch nut on the HSA clutch assembly, which could result in loss of pitch trim and consequent reduced controllability of the airplane.

EMBRAER has issued Service Bulletin 145-27-0088, dated February 1, 2002, which specifies a visual inspection to verify that at least one locking tab on the key washer for the HSA clutch assembly is bent into the locking groove of the clutch nut. The EMBRAER service bulletin refers to Parker Service Bulletin 362200-27-231, dated December 21, 2001, as the appropriate source of service information for accomplishment of this inspection. (A copy of the Parker service bulletin is contained within the EMBRAER service bulletin.) The Parker service bulletin describes procedures for the visual inspection, as well as for follow-on actions. If at least one locking tab is bent into the locking groove of the clutch nut, follow-on actions include an inspection for damage of the O-ring at the base of the HSA motor, replacement of the O-ring if necessary, and an inspection of the sealing surface for damage. If no locking tab is bent into the locking groove of the clutch nut, the Parker service bulletin specifies to replace the HSA assembly with a serviceable HSA assembly. Accomplishment of the actions specified in these service bulletins is intended to adequately address the identified unsafe condition. The DAC classified the EMBRAER service bulletin as mandatory and issued Brazilian airworthiness directive 2002-04-01, dated April 24, 2002, to ensure the continued airworthiness of these airplanes in Brazil.

These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent a loose or disengaged clutch nut on the HSA clutch assembly, which could result in loss of pitch trim and consequent reduced controllability of the airplane. This AD requires accomplishment of the actions specified in the EMBRAER service bulletin described previously, except as discussed below.

The EMBRAER service bulletin and the Brazilian airworthiness directive described previously refer to a “visual” inspection. For the purposes of this AD, the FAA has determined that the inspection procedures in the service bulletins constitute a “detailed inspection.” Note 2 of this AD defines such an inspection.

Further, the follow-on actions in the service information include inspections for damage (e.g., nicks, tears, scarring) of the O-ring at the base of the HSA motor and the sealing surface of the HSA housing. While the service information does not identify the type of inspections that are necessary, we have determined that detailed inspections are necessary.

Also, the service information does not specify a corrective action if any damage of the sealing surface of the HSA housing is found during the follow-on inspection of that area. We find it necessary to require replacement of the HSA assembly with a serviceable assembly if any damage to the sealing surface of the housing is found. The replacement of the HAS assembly has been coordinated and concurred with by the DAC.

The applicability for the Brazilian airworthiness directive includes “all EMBRAER EMB-135 and -145 series airplanes,” but also specifies a preliminary verification of the part numbers and serial numbers of the HSAs installed on those models. However, for this AD, we have determined that it will be more clear to identify affected airplanes in the same way they are identified in the EMBRAER service bulletin. The effectivity of that service bulletin lists airplanes equipped with HSAs having certain part numbers and serial numbers, but does not provide for preliminary verification of HSA part numbers and serial numbers as the Brazilian airworthiness directive does.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-129-AD.” The postcard will be date stamped and returned to the commenter.

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.

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

The FAA has received a report of an incident involving a McDonnell Douglas Model MD-11 airplane on which a loud bang was heard when the airplane was on approach with gear down and flaps set at 50 degrees. The airplane shuddered and then rolled left. The flightcrew applied full right-hand aileron to level the wings, missed the approach, and declared an emergency. During landing, the tail of the airplane scraped the runway. Reports indicate that the left-hand inboard flap outboard hinge pulled away from the wing structure where it attaches with two upper and two lower bolts. It was determined that the lower bolts likely failed first. This condition, if not corrected, could result in reduced controllability of the airplane.

The design of the subject area of the airplane is the same on Model DC-10 and MD-11 airplanes. The DC-10 is subjected to lower loads and is less likely to experience this failure. However, Model MD-11 airplanes experience higher loads. In addition, current parts availability only supports the MD-11 fleet. In light of these factors, we have determined that it is appropriate at this time to address the airplane model that has higher loads and has experienced the failure. After additional investigation into the cause of the incident on Model MD-11 airplanes, we may consider related rulemaking for Model DC-10 airplanes.

The FAA has reviewed and approved Boeing Alert Service Bulletin MD11-57A067, including Appendices A and B, dated July 10, 2002, which describes various procedures for different groups of airplanes, based on the composition of the nuts on the lower bolts of the inboard flap outboard hinge.

Group 1 airplanes have alloy steel nuts, and Group 2 airplanes have Inconel nuts. The procedures for these airplane groups include removing sealant from the head and nut sides of both bolt assemblies, using a wiggle tool to detect looseness of the preload-indicating (PLI) washers, and visually inspecting the nut for corrosion and cracking. Based on the results of the inspection, follow-on and corrective actions include doing a magnetic particle inspection of the bolt to detect cracking and corrosion, replacing discrepant parts with new Inconel and/or alloy steel bolts and nuts and new PLI washers, and applying sealant.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to detect and correct loose PLI washers or cracked or corroded nuts of the lower bolts of the inboard flap outboard hinge, which could result in separation of the inboard flap outboard hinge from the wing structure and consequent reduced controllability of the airplane. This AD requires a one-time inspection to detect loose PLI washers or cracked or corroded nuts of the lower bolts of the inboard flap outboard hinge, and replacement with new parts if necessary. This AD also requires that operators report results of inspection findings to the FAA.

The alert service bulletin specifies that operators may test for looseness of the PLI washers by use of a wiggle tool, “or equivalent.” However, this AD requires that any alternative to the wiggle-tool test be accomplished in accordance with a method approved by the FAA. Use of an equivalent tool or test procedure is allowed only if approved as an alternative method of compliance in accordance with the requirements of paragraph (e) of this AD.

Further, although the alert service bulletin specifies that the manufacturer may be contacted for disposition of “additional examination recommendations,” this AD requires that such actions be accomplished in accordance with a method approved by the FAA.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking. Because the cause of the unsafe condition is not currently known, the intent of the required inspection reports is to enable the FAA to determine the extent of the problem in the affected fleet. Based on the results of these reports, further corrective action may be warranted.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-168-AD.” The postcard will be date stamped and returned to the commenter.

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.

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

Section 9 of the Centennial of Flight Commemoration Act (the Act), Public Law 105-389, as amended by Public Law 106-68, authorizes the NASA Administrator to license the use of the Centennial of Flight Commission name on any logo, emblem, seal, or descriptive or designating mark adopted for use by the Administrator, after consultation with the Commission, in connection with the commemoration of the centennial of powered flight. By this rule, the Administrator delegates licensing authority in section 9 to the Assistant Administrator for Public Affairs, without authority for further delegation.

Pursuant to 5 U.S.C. 553(a)(2), (b), and (d), NASA has determined that good cause exists for waiving the regular notice of proposed rulemaking, opportunity for public comments, and 30-day delayed effective date for this final rule. This action is being taken because it is in the public interest that this rule, which concerns matters of agency management, personnel, organization, practice, and procedure, be effective on the date of publication.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), NASA has 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. Pursuant to 5 U.S.C. 605(b), NASA certifies that this rule will not have a significant economic impact on a substantial number of small entities because the rule only affects the operations of NASA and its employees. Accordingly, no regulatory flexibility analysis is required.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, is not subject to review under section 3(d) of that Order because it is limited to NASA's organization, management and/or personnel matters, 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.

This rule calls for no new collection of information under the Paperwork Reduction Act (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. NASA has analyzed this rule under that Order and has determined that it does not have implications for federalism.

Title II of 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. NASA has determined that the rule will not result in expenditures by State, local, or tribal governments or by the private sector of $100 million or more. The rule affects only the internal organization of NASA. Accordingly, NASA has not prepared a budgetary impact statement or specifically addressed regulatory alternatives.

Schering-Plough Animal Health Corp., 1095 Morris Ave., P.O. Box 3182, Union, NJ 07083, filed NADA 141-194 that provides for use of CLINACOX (0.2 percent diclazuril) and BMD (10, 25, 30, 40, 50, 60, or 75 grams per pound (g/lb) bacitracin methylene disalicylate) Type A medicated articles to make two-way combination drug Type C medicated feeds for growing turkeys. The Type C feeds contain 0.91 g/ton diclazuril and 4 to 50 g/ton bacitracin methylene disalicylate, and they are used for the prevention of coccidiosis caused by Eimeria adenoeides , E. gallopavonis , and E. meleagrimitis , and for increased rate of weight gain and improved feed efficiency. The NADA is approved as of April 2, 2002, and the regulations are amended in 21 CFR 558.198 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

USAID is revising its claim collection procedures to incorporate changes made to the Federal Claims Collection Standards and the Debt Collection Improvement Act of 1996. One principal change in the rule is the provision for the mandatory referral of certain delinquent debt to the Federal Management Service of the Department of the Treasury. The changes will maximize the effectiveness of USAID's claim collection procedures.

USAID has determined that this regulation is not a significant regulatory action as defined in Executive Order 12866 and, accordingly, this regulation has not been reviewed by the Office of Management and Budget.

It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Accordingly, a Regulatory Flexibility Analysis is not required.

This regulation will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one-year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or export markets.

USAID has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, this rule meets the applicable standards in section 3 to mitigate litigation, eliminate ambiguity and reduce burden.

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

Internet users may access all comments received by the U.S. DOT Docket Facility, Room PL-401, by using the universal resource locator (URL) http://dmses.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's Web page at: http://www.access.gpo.gov.

On November 27, 2001, the FHWA issued a notice of proposed rulemaking (NPRM) in the Federal Register (66 FR 59188) to obtain comments from interested persons on proposed revisions to the regulation. Changes to the existing regulation were made to reflect the TEA-21 legislation and to eliminate outdated regulatory references. New language was added to encourage sharing of research results, pooling of funds, and the promotion of new technology. In addition, the phrase “peer review” was changed to “peer exchange” to reflect the underlying philosophy that—rather than an audit—the peer exchange is an opportunity to share best practices and foster excellence in research, development, and technology transfer (RD&T) program management.

The FHWA's regulations for Planning and Research Program Administration were last revised on July 22, 1994, (59 FR 37548) prior to the enactment of the TEA-21 (Public Law 105-178, 112 Stat. 107 (1998)). Section 5119(b) of the TEA-21 repealed the SPR funds section in 23 U.S.C. 307(c) and section 5105 of the TEA-21 added a new SPR funds section 505 to title 23, U.S. Code. Changes in the Federal-aid highway program in the TEA-21 also resulted in changes in the Federal-aid highway program categories from which SPR funds are set aside. Section 1212 of the TEA-21 revised 23 U.S.C. 302 to allow a State DOT to be reimbursed for indirect costs.

Based on experience since the 1994 revision, changes were made to refine definitions and to clarify the meaning and applicability of several sections of the regulation. For example, the phrase “peer review” has been replaced with “peer exchange” to describe the transfer of RD&T related information and best practices between State DOTs, the FHWA, universities and public and private sector transportation organizations. The phrase “transportation pooled fund study” is used to replace the regional and national distinctions and to reflect current practice. Also, the FHWA made further clarification regarding the conditions under which the non-Federal share of an SPR or metropolitan planning (PL) funded project may be waived.

The NPRM was published in the Federal Register on November 27, 2001, at 66 FR 59188. The comment period ended on January 28, 2002. We received 9 docket comments, all from State DOTs, in response to the NPRM. Many of the comments support the rule revision and mention that it has added greater clarity to the regulation. A summary of the comments, the FHWA response, their disposition, and the changes made to the rule follow.

Two commenters expressed displeasure with the question and answer (Q&A) format.

The FHWA has rewritten the rule using the guidelines established in the Federal Register Document Drafting Handbook under the section Making Regulations Readable. The handbook's guidance reflects the directives outlined in the June 1, 1998, Presidential Memorandum, “Plain Language in Government Writing,” (3 CFR, 1999 Comp., p. 289) available online at http://www.access.gpo.gov/nara/cfr/waisidx—99/other—99.html.

Two commenters mentioned that the abbreviation STD was an inappropriate one due to its negative connotations.

The term “State transportation department” is included in section 302 of title 23, U.S. Code. In addition § 1201 of TEA-21 amended 23 U.S.C. 101 to remove “State highway department” and added the term “State transportation department.” The abbreviation “STD” was simply derivative. However, we understand and appreciate the commenter's concerns and have changed STD to State DOT where appropriate. In addition, a definition of State DOT has been added in § 420.103. For consistency with the legislation, the definition is the same as that included in section 101 of title 23, U.S.C for State department of transportation, which is defined as that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction.

In response to a recent assessment of the FHWA's 1998 restructuring, the title Program Manager for Planning and Environment has been changed to Associate Administrator for Planning and Environment and the title Director of Research, Development and Technology has been changed to Associate Administrator for Research, Development and Technology in the final rule.

In § 420.103, we replaced “designated by the Administrators of the FHWA and the Federal Transit Administration (FTA)” in the definition of transportation management area with “designated by the Secretary of Transportation” to be consistent with legislative language in 23 U.S.C. 134(i).

We added the words “covering no less than one year” to the definition of the term Work Program. We felt it is important to clarify that work programs of less than one year in duration should not be submitted because of administrative burden that would be involved.

In § 420.105(a)(1), we replaced “intermodal” with “local public transportation” to be consistent with legislative language in 23 U.S.C. 505(a)(2) that states that FHWA planning funds can be used for the planning of future highway programs and local public transportation systems and the planning of financing of such programs and systems, including metropolitan and statewide planning under 23 U.S.C. 134 and 135.

Regarding the consultation with Metropolitan Planning Organizations (MPOs), one State DOT mentioned that the use of the phrase “consultation with MPOs” was preferred over the use of “in cooperation with MPOs.” The State DOT observed that the term “consultation” gives States greater flexibility in working with local governments (§ 420.109).

The term “consultation” used in the regulation is the correct term. The term “cooperation” was inadvertently used in the preamble to discuss changes made in § 420.109. The final rule contains the term “consultation” and not “cooperation.”

Four commenters supported the “flexibility” provided in § 420.109 that allows State PL fund distribution formulas to include provisions for using PL funds for activities that benefit all MPOs in the State or for discretionary awards to MPOs.

This flexibility has always been allowed, but was not reflected in the previous regulations. All PL funds apportioned to a State must be made available by the State to the MPOs in accordance with a formula developed by the State in consultation with the MPOs and approved by the FHWA. Therefore, any “hold back” of PL funds by the State for such uses must be reflected in the approved formula. However, it is not necessary for the formula to reflect the situation where an MPO(s) has received its PL fund allocation based on the State formula to choose to allow the State to perform work for the MPO(s) with PL funds.

One commenter indicated that the provisions in § 420.109(d) and (e) that allow use of excess PL funds for planning outside of metropolitan areas would also be helpful.

Both of these provisions were in the previous regulation and are based on legislative provisions. Under the legislation, each State receives a minimum of one-half of one percent of the annual PL fund apportionments regardless of the States population in urbanized areas of 50,000 or more population. In these minimum PL apportionment States, the State DOT may use PL funds not needed for metropolitan planning for transportation planning outside of metropolitan areas after considering the views of the affected MPOs and with the approval of the FHWA. In States that receive more than the one-half of one percent minimum apportionment, the MPOs may make PL funds not needed by them for metropolitan planning available to the State for statewide transportation planning with the approval of the FHWA.

One State DOT requested that States be allowed the option of continuing to charge pro-rata costs of administrative salaries to SPR funds or of using an indirect cost rate as required in revised § 420.113. This commenter also suggested that the language regarding annual updates and approvals be combined in paragraph (b) of § 420.113 rather than being separated into paragraphs (b) and (c).

Prior to enactment of TEA-21, State DOTs could not claim reimbursement for indirect costs, such as those of supervisory personnel and support staff who did not work directly on grant supported activities, for FHWA funded projects. However, we did allow a share of the salaries of such personnel in the State DOT planning and research units to be charged directly based on the percent of work in these units that was performed with FHWA planning and research funds. One of the basic criteria in the Office of Management and Budget (OMB) Circular A-87, Cost Principles for State, Local and Indian Tribal Governments revised May 4, 1995, (available online at http://www.whitehouse.gov/omb/circulars/a087/toc.html) is that costs be treated consistently in order to be allowed to be charged to Federal grants. Now that State DOTs can charge indirect costs to all FHWA projects, it would be inappropriate to continue this pro-rata charge for selected units of the State DOT. In addition there is a potential the portion of these salaries that are charged directly would mistakenly be included with the remainder of the salaries in the State DOTs indirect cost pool. This would result in these costs being recovered both directly and indirectly, which is not permitted. Therefore, the final rule retains the revision to this provision proposed in the NPRM. Effective with the first State DOT fiscal year beginning after the effective date of this rule indicated above, these salaries may no longer be charged on a pro-rata basis.

One State DOT asked for clarification of the term “third-party” as opposed to “subrecipient” in § 420.119 and asked if a local government receiving metropolitan planning funds is a subrecipient or a third-party and that definitions of these terms be included in the regulation. This same commenter asked if the “new requirement” that the use of in-kind contributions be approved in advance by the FHWA would be made retroactive for current programs or projects.

Since local governments, which by definition in OMB Circular A-87 and U.S. DOT grant regulations at 49 CFR part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (available online at http://www.access.gpo.gov/ecfr), includes agencies such as councils of government and regional planning agencies that provide MPO staff services, receive FHWA planning and research funds through the State DOTs and not directly from the FHWA, local governments and other agencies that receive these funds are subrecipients. As defined in 49 CFR part 18, “third party in-kind contributions mean property or services which benefit a federally assisted project or program and which are contributed by non-Federal third parties without charge to the grantee, or a cost-type contractor under the grant agreement.” A local government can be both a subrecipient and a “third-party.” For example, if the local government receives Federal funds from a State DOT or MPO, it would be a subrecipient of the State or MPO; a local government that donates services (such as collection of traffic data) to a State DOT or MPO without charge would be a third-party and the State DOT or MPO could use the value of the donated services to match the Federal funds expended by the State or MPO. Since these terms are defined in other regulations that are cited in 23 CFR part 420, we have not added the definitions. The requirement that use of in-kind contributions as the match for FHWA planning and research funds is not retroactive. However, it has always been required that the source of matching funds be identified.

One State DOT commented that the provision for waiver of matching in § 420.119(d) would have positive impacts where local match is difficult for an MPO to obtain.

As indicated in § 420.119(d), the waiver provision is not intended for individual situations such as this, but to encourage State DOTs and MPOs to pool their SPR or PL funds to address issues of common concern.

One State DOT mentioned that it did not support the concept in § 420.207 that RD&T studies funded under previous work programs should be shown in subsequent work programs because it would create extra paperwork. It mentioned that this is a tracking issue and that the work program is not a tracking tool.

The work program is a mandatory requirement used to justify expenditure of State planning and research funds. If there is no commitment of funds on a given study during the work program period and the study is incomplete ( e.g., awaiting review of final report, etc. ), this fact must be noted on the work program until the study is closed out. That is, there must be a reconciliation between the funds spent and the required deliverable or product at some point. This should not require significant additional paperwork, only a line acknowledging the status of the study until it is closed out.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or within the meaning of U.S. Department of Transportation regulatory policies and procedures. The economic impact of this rulemaking will be minimal. This final rule will not adversely affect, in a material way, any sector of the economy. In addition, it will not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. This final rule addresses the administrative procedures and requirements that State DOTs must comply with when using FHWA planning and research funds provided under title 23, U.S. Code. This rule would not impose any direct requirement on small entities that would result in increased economic costs. For these reasons, the FHWA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532). This final rule updates the existing rule to conform to provisions in the TEA-21 and makes it clearer and easier to understand. The costs of compliance with the provisions of this rule are minor and are eligible for Federal funding.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The rule provides State DOTs the authority and flexibility to manage their federally assisted State planning and research programs using their own procedures to the extent permitted under the principles and criteria contained in OMB Circular A-102, Grants and Cooperative Agreements with State and Local Governments. Accordingly, the FHWA certifies that this rule does not have sufficient federalism implications to warrant the preparation of a full Federalism assessment under the principles and criteria contained in Executive Order 13132.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to FHWA planning and research fund grants.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action contains collection of information requirements for the purposes of the PRA. These information collections are currently approved by the OMB, and there are no burden revisions to them as a result of this action.

The information collection requirements referenced in § 420.105(b) are assigned OMB control numbers 2125-0028 (expiration date, February 28, 2003) and 2125-0032 (expiration date, March 31, 2003).

The FHWA is responsible for transportation planning and research, development and technology (RD&T) work performed by State DOTs with funds provided under the provisions of 23 U.S.C. 505 or other 23 U.S.C. funds, as identified in the definition of FHWA planning and research funds in 23 CFR 420.103, used for such purposes at a State DOT's option. Therefore, the information collection requirements in §§ 420.111, 420.117, and 420.209 for State DOT planning and RD&T activities are assigned an FHWA OMB control number 2125-0039 (expiration date, April 30, 2004). Although 23 CFR part 420 also includes administrative requirements and procedures for funds provided for Metropolitan Planning Organizations (MPOs) to carry out the requirements of 23 U.S.C. 134, the metropolitan planning process is a jointly funded and administered FHWA/Federal Transit Administration (FTA) requirement. The information collection requirements in §§ 420.111 and 420.117, for work performed by the MPOs is assigned an FTA OMB control number 2132-0529 (expiration date, March 31, 2004).

The information collection requirements referenced in § 420.209 are assigned OMB control number 2125-0039 (expiration date, April 30, 2004).

This final 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 action meets applicable standards in section 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 action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This final rule is not economically significant and does not concern an environmental risk to health or safety that may disproportionately affect children.

The FHWA has analyzed this final rule under Executive Order 13175, dated November 6, 2000, and believes that the proposed action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

We have analyzed this final 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. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

The agency has analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this action will not have any effect on the quality of the environment.

A regulation identification number (RIN) is assigned 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. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1719. Responses to this collection of information are required in order for certain individuals to receive relief from the joint and several liability imposed by section 6013(d)(3).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.

The burden contained in § 1.6015-5 is reflected in the burden of Form 8857.

Comments concerning the accuracy of the burden estimate and suggestions for reducing the burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

Books or records relating to this collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to the Regulations on Procedure and Administration (26 CFR part 301) under section 6013 of the Internal Revenue Code (Code), relating to the election to file a joint Federal income tax return, and section 6015, relating to relief from the joint and several liability. Section 6015 was added to the Code by section 3201 of the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206 (112 Stat. 685) (1998) (RRA), effective for any joint liability that was unpaid as of July 22, 1998, and for any liability that arises after July 22, 1998. Section 6015 was amended by section 313 of the Community Renewal Tax Relief Act of 2000, which was enacted as part of the Consolidated Appropriations Act, 2001, Public Law 106-554 (114 Stat. 2763)(2000)(CRA).

This document also removes final regulation § 1.6013-5, relating to relief from joint and several liability under former section 6013(e). The final regulation under § 1.6013-5 is obsolete due to amendments to section 6013 of the Code by the Internal Revenue Service Restructuring and Reform Act of 1998. The removal of this regulation will not affect taxpayers.

A notice of proposed rulemaking (REG-106446-98) was published in the Federal Register (66 FR 3888) on January 17, 2001, with correction dated March 29, 2001 (66 FR 17130). Several comment letters were received, and three of the commentators spoke at the public hearing on May 30, 2001. After consideration of the comments, the proposed regulations are adopted as modified by this Treasury decision. The comments are discussed below.

Section 1.6015-1 of the proposed regulations contains general provisions that apply to all three types of relief from joint and several liability.

Section 1.6015-1 of the proposed regulations provides that if a requesting spouse only requests equitable relief under section 6015(f) and does not elect relief under section 6015(b) or (c), the IRS may not grant relief under either section 6015(b) or (c). Several commentators suggested that, regardless of the type of relief requested, the regulations should require that the IRS consider all three types of relief.

Relief under section 6015(b) and (c) must be elected by the requesting spouse. When an election is made, the statute of limitations on collection of the requesting spouse's liability relating to such election is suspended. In addition, the IRS is statutorily prohibited from pursuing certain collection activities until the claim for relief under section 6015(b) or (c) is resolved. When, however, a requesting spouse only requests equitable relief under section 6015(f), the statute of limitations on collection is not suspended, and the IRS is not prohibited from collecting the liability from the requesting spouse. The IRS cannot assume, absent an election under section 6015(b) or (c), that a requesting spouse, in only requesting relief under section 6015(f), would have elected relief under section 6015(b) or (c). Such an assumption would improperly suspend the requesting spouse's statute of limitations on collection when the requesting spouse did not elect relief under section 6015(b) or (c). Thus, the final regulations do not adopt this recommendation.

If, in the course of reviewing a request for relief only under section 6015(f), the IRS determines that the requesting spouse may qualify for relief under section 6015(b) or (c) instead of section 6015(f), the IRS will contact the requesting spouse to see if he or she wishes to amend the claim for relief by affirmatively electing relief under section 6015(b) or (c). If the requesting spouse so chooses, he or she may submit a statement that amends the claim for relief and elects relief under section 6015(b) or (c). The final regulations provide that the amended claim for relief will relate back to the original claim for purposes of determining the timeliness of the claim.

Section 1.6013-4(d) of the proposed regulations provides that if an individual asserts and establishes that he or she signed a return under legal duress, the return is not a joint return, and the individual is not jointly and severally liable for the tax shown on the return, or any deficiency in tax with respect to the return.

Two commentators suggested that § 1.6013-4(d) of the proposed regulations improperly denies the benefits of section 6015 to those individuals who establish that they signed returns under duress. The rule in § 1.6013-4(d) reflects well established case law regarding the consequences of filing a joint return under duress. Compare Stanley v. Commissioner, 45 T.C. 555 (1966), with Brown v. Commissioner, 51 T.C. 116 (1968). Under section 6013, married taxpayers may elect to file a joint return. If such an election is made, section 6013(d)(3) provides that both spouses are jointly and severally liable for the combined liability of both spouses. The election under section 6013 must be voluntarily made by both spouses. If either spouse involuntarily makes the election under duress, then the election is invalid with respect to both spouses.

One commentator suggested that the invalidation of the joint election when one spouse signs a return under duress inappropriately denies such spouse the benefits of certain credits (e.g., the earned income credit) and the joint filing rates. An allegation that a spouse was forced to sign a joint return against his or her will indicates that, in the absence of the threat, the spouse would have filed a separate return. In order to qualify for the earned income credit or the joint return rates, the Code mandates that the spouse file a joint return. If the spouse filed a joint return in order to benefit from the earned income credit, the joint return rates, or other benefits flowing from a joint return, and not due to duress, then the election to file the joint return was voluntary and valid. If the requesting spouse raises the issue of duress and it is determined that the requesting spouse would owe more tax if he or she filed a married filing separately return, then the requesting spouse may choose not to pursue the issue of duress.

Both commentators suggested that the rule regarding the treatment of returns signed under duress was inconsistent with the language of section 6015(c)(3)(C). Section 6015(c)(3)(C) provides that the limitation on relief under section 6015(c), when the requesting spouse has actual knowledge of the item giving rise to the deficiency, does not apply if the requesting spouse establishes that he or she signed the return under duress. Neither the limitation of section 6015(c)(3)(C), nor any portion of section 6013 or 6015 applies to a return signed under duress, i.e., a return for which no valid joint return election was made. To interpret the rule to allow the benefits of a joint return in the absence of a valid joint return election, as the commentators suggest, would require that the IRS treat joint return elections as valid for purposes of section 6015(c), but invalid for purposes of sections 6015(b) and (f), when the requesting spouse establishes that the return was signed under duress. Placing the duress rule in the regulations under section 6013 results in consistent treatment of a claim of duress that would apply to the three relief provisions under section 6015.

One commentator suggested that, the Treasury and IRS refer to duress as opposed to legal duress because the term legal duress suggests that something more specific than duress is intended. In particular, the commentator noted that in some cases courts have declined to define legal duress to include domestic abuse. Although the final regulations use the term, duress rather than legal duress, Treasury and the IRS believe the terms are synonymous, and duress continues to provide a basis for invalidating the joint return election.

Nonetheless, Treasury and the IRS have taken these comments into consideration in interpreting the specific duress provision in section 6015(c)(3)(C). See the discussion of the abuse exception to actual knowledge (§ 1.6015-3(c)(2)(v)) in section 3.B. of this preamble.

Section 1.6015-1(c) of the proposed regulations provides that relief is not available if the requesting spouse signed a closing agreement or entered into an offer in compromise with the IRS for the same tax year for which he or she seeks relief under section 6015. One commentator suggested that there was no support for this position in the statute. Section 6015(g)(1) provides that “[e]xcept as provided in paragraphs (2) and (3), notwithstanding any other law or rule of law (other than section 6511, 6512(b), 7121, 7122), credit or refund shall be allowed or made to the extent attributable to the application of this section.” (Emphasis added). Sections 7121 and 7122 deal with closing agreements and offers in compromise, respectively. Section 301.7121-1(c) of the Regulations on Procedure and Administration provides that a closing agreement is final and will not be set aside in the absence of fraud, malfeasance, or misrepresentation. Section 301.7122-1T(d)(5) of the Temporary Regulations on Procedure and Administration provides a similar rule for the finality of offers in compromise. Thus, the statute and the regulations directly support the position in the proposed regulations that relief under section 6015 is not available if the requesting spouse signed a closing agreement or offer in compromise disposing of the same liability that is the subject of the claim for relief.

Another commentator suggested that the requesting spouse should be given an opportunity to establish that he or she was not a party to the closing agreement or offer in compromise and that such signed documents should not preclude relief. In Hopkins v. Commissioner, 146 F.3d 729 (9th Cir. 1998), the United States Court of Appeals for the Ninth Circuit held that a claim for relief from joint and several liability under section 6013(e) was precluded if a closing agreement was signed by the requesting spouse for the tax year in question. Nothing in section 6015 nor the legislative history indicates that Congress intended to change the rules regarding the finality of such documents when relief is requested under section 6015. If the requesting spouse did not sign the closing agreement or offer in compromise, then the requesting spouse is not bound by that document, and relief under section 6015 would be available. Thus, there is no need to amend the final regulations to incorporate this comment.

Section 1.6015-1(d) of the proposed regulations provides that if the Secretary establishes that one spouse transferred assets to the other spouse as part of a fraudulent scheme, relief is not available under section 6015. Section 1.6015-3(d)(2)(ii) of the proposed regulations provides that the Service may allocate any item between the spouses if the Service establishes that the allocation is appropriate due to fraud by one or both spouses. Two commentators requested that the Treasury and IRS provide examples to distinguish between a fraudulent scheme and fraud.

Fraudulent scheme in § 1.6015-1(d) refers to a fraudulent transfer of assets. The final regulations clarify that a fraudulent scheme is a scheme to defraud the IRS or another third party, including, but not limited to, creditors, ex-spouses, and business partners. In contrast, fraud in § 1.6015-3(d)(2)(ii) encompasses any fraud of either spouse including, but not limited to, the fraudulent alteration of documents, the fraudulent filing of a return or claim for relief, or any other fraud that may be relevant to the claim for relief. The fraudulent scheme and fraud exceptions are very broad and might overlap in some circumstances. It would be misleading to provide discrete examples that attempt to distinguish between a fraudulent scheme and fraud. Thus, the final regulations do not adopt this recommendation.

Section 1.6015-1(g)(3) of the proposed regulations defines item as that which is required to be separately listed on an individual income tax return or any required attachments, subject to one exception. The exception provides that interest and dividend income from the same source would be treated as one item. Several commentators suggested that this rule be eliminated because the source of the income should not be relevant. The requesting spouse's ability to receive partial relief from the deficiency relating to an erroneous item when the requesting spouse knew of part but not all of the item addresses the concern for which this rule was originally drafted. Thus, the final regulations adopt this recommendation.

Section 1.6015-1(g)(4) of the proposed regulations defines erroneous item as any item resulting in an understatement or deficiency in tax to the extent that such item is omitted from, or improperly reported (including improperly characterized) on an individual income tax return. One commentator suggested that it was improper to include items that were improperly characterized on the return as erroneous items. The commentator suggested that such a rule would require a requesting spouse to know the proper characterization of an item in order for the spouse to receive relief. The proposed regulations, however, do not require a requesting spouse to know the proper characterization of an item for the item to be “erroneous.” To the contrary, if the requesting spouse knew of the item that gave rise to an understatement or deficiency, regardless of whether the requesting spouse also knew the item was improperly characterized, the item is “erroneous” under § 1.6015-1(g)(4). To remove improper characterization from the definition of erroneous item might create an inference that requesting spouses are not entitled to relief for an item that was improperly characterized on a return. Such a rule would be inconsistent with the statutory language. Therefore, the final regulations do not adopt this recommendation.

This provision was also amended to clarify that penalties and interest are not erroneous items. Rather, relief from penalties and interest will generally be determined based on the proportion of the total erroneous items from which the requesting spouse is relieved. If a penalty relates to a particular erroneous item, then relief from such penalty will be determined based on whether the requesting spouse was relieved of liability from the erroneous item.

Section 1.6015-1(h) of the proposed regulations provides that the relief provisions of section 6015 do not negate liability that arises under the operation of other laws. One commentator suggested that the regulations adopt a rule that the IRS would not look to community property as a collection source when a requesting spouse with an interest in such community property is granted relief under section 6015. A federal tax lien arising under section 6321 attaches to all property and rights to property of the taxpayer. Whether a taxpayer has an interest in property to which the lien can attach is determined by state law. Aquilino v. United States, 363 U.S. 509 (1960). Once that property interest is defined, federal law alone determines the consequences resulting from the attachment of the federal lien on the property. United States v. Drye, 528 U.S. 49 (1999). If under the law of the community property state in which the spouses reside, the IRS can look to community property to collect a liability of one of the spouses, the determination that the other spouse is entitled to relief under section 6015 does not affect the Service's ability to collect the nonrequesting spouse's liability from the community property. See, e.g., United States v. Stolle, 2000-1 U.S.T.C. ¶50,329 (C.D. Cal. 2000); Hegg v. IRS, 28 P.3d 1004 (Idaho 2001). The final regulations do not adopt this recommendation because it goes beyond the scope of the statute.

Section 6015(g)(2) provides that, in the case of any election under section 6015(b) or (c), if a decision of a court in any prior proceeding for the same taxable year has become final, such decision shall be conclusive except with respect to the qualification of the requesting spouse for relief which was not at issue in that proceeding. This exception does not apply if the court determines that the requesting spouse participated meaningfully in the prior proceeding. In other words, a requesting spouse who participated meaningfully in a prior court proceeding concerning the underlying liability for which relief is sought is precluded by section 6015(g)(2) from electing relief under section 6015(b) or (c) after the decision becomes final, whether or not the requesting spouse's eligibility for relief under section 6015(b) or (c) was at issue in the prior proceeding. In addition, under section 6015(g)(2) if the requesting spouse's entitlement to relief from liability under section 6015 for the same tax year was at issue in a prior proceeding, then, regardless of the extent of the requesting spouse's participation in such proceeding, the requesting spouse would be precluded from electing relief under section 6015(b) or (c) after the decision in such proceeding has become final. Thus, § 1.6015-1(e) of the final regulations was amended to emphasize that res judicata will apply if relief under section 6015 was at issue in the prior proceeding, or if the requesting spouse meaningfully participated in the prior proceeding.

The final regulations add § 1.6015-1(g), and redesignate § 1.6015-1(g) and (h) of the proposed regulations as § 1.6015-1(h) and (j), respectively. Section 1.6015-1(g) of the final regulations clarifies that relief under section 6015 will not be available for any portion of a liability for any taxable year for which a claim for credit or refund is barred by operation of any law or rule of law.

Section 1.6015-2 of the proposed regulations provides the rules regarding relief from joint and several liability under section 6015(b) that are applicable to all qualifying joint filers.

Section 1.6015-2(a)(3) of the proposed regulations provides that one of the requirements of relief under section 6015(b) is that the requesting spouse establish that he or she had no knowledge or reason to know of the item giving rise to the understatement. Two commentators pointed out that the underlined language is not consistent with section 6015(b)(1)(C), which articulates the requirement as knowledge or reason to know of the understatement. Both commentators suggested that the rules regarding knowledge under section 6015(b) should be consistent with the knowledge standard developed under former section 6013(e).

The language in § 1.6015-2(a)(3) of the proposed regulations was not intended to reflect a new standard of knowledge in section 6015(b) cases. Indeed, the standards for knowledge or reason to know that were developed under former section 6013(e) should be used in determining a requesting spouse's knowledge or reason to know under section 6015(b). The Treasury and IRS did not intend to suggest a harsher standard of knowledge under section 6015(b) than that which existed under section 6013(e). Therefore, the final regulations adopt this recommendation by amending the language of § 1.6015-2(a)(3) of the proposed regulations to be consistent with the language of section 6015(b)(1)(C).

Section 1.6015-2(d) of the proposed regulations provides that all of the facts and circumstances are considered in determining whether it was inequitable to hold a requesting spouse liable for the understatement attributable to the nonrequesting spouse. Among the factors considered is whether the requesting spouse significantly benefitted, in excess of normal support, either directly or indirectly from the understatement. Such significant benefit may include transfers of property or rights to property, including transfers that may be received several years after the year of the understatement (e.g., life insurance proceeds) that are traceable to items omitted from gross income.

Two commentators suggested that the Treasury and IRS define normal support for purposes of this section. Normal support depends on the taxpayer's particular circumstances, including the cost of living, which varies across the country. Thus, a general definition in the final regulations would not be useful. Rules regarding normal support have been developed in case law under section 6013(e) and are applicable to section 6015(b) as well. The final regulations do not adopt this recommendation.

Another commentator questioned the conclusion in the example within § 1.6015-2(d) of the proposed regulations that life insurance proceeds that are traceable to items of omitted income of the nonrequesting spouse are considered a significant benefit. The commentator pointed to the legislative history as suggesting that Congress intended widows to benefit from the relief provided by the statute, and it is likely that widows would receive such a benefit. The reference to widows in the legislative history to section 6015 is contained in a footnote to the legislative history for section 6015(c). The footnote provides that no longer married for purposes of that section includes widowed. The reference to widows is not in the legislative history for section 6015(b) with respect to the rules regarding equity under section 6015(b).

The courts have recognized that the rules regarding knowledge or reason to know and equity under section 6015(b) are consistent with the rules regarding knowledge or reason to know that were developed under section 6013(e). See, e.g., Von Kalinowski v. Commissioner, T.C. Memo. 2001-21. The rule regarding significant benefit from life insurance proceeds was contained in the regulations under § 1.6013-5. As life insurance proceeds traceable to items of omitted income were considered a significant benefit for purposes of section 6013(e), they are also considered a significant benefit for purposes of section 6015(b). While, the final regulations do not adopt this recommendation, they do clarify that the receipt of property, such as insurance proceeds or the value of life insurance, traceable to items omitted by the nonrequesting spouse must be beyond normal support before they are considered a significant benefit.

One commentator suggested that the final regulations provide that the IRS should consider the entire property settlement, if any, in order to determine whether the requesting spouse significantly benefitted from the understatement. The commentator suggested that if the requesting spouse did not receive an equitable distribution of assets during the divorce proceedings, the Service should not consider any items received by the requesting spouse that are traceable to items of omitted income as a significant benefit. Such a rule, however, would require the IRS to make a determination of whether the distribution of assets was fair in a divorce proceeding, which may have taken place years before and to which the IRS was not a party. Many factors, including equity, are typically considered under state and local laws in determining the distribution of assets in a divorce proceeding. It would be inappropriate for the IRS to pass judgment on the equity of such determinations. The final regulations do not adopt this recommendation.

One commentator suggested that the final regulations adopt a de minimis exception to significant benefit. However, if the benefit was de minimis, it would not be significant. Thus, the final regulations do not adopt this recommendation.

Section 1.6015-2(d) of the proposed regulations also provides a list of factors that may be considered in determining whether it would be inequitable to hold the requesting spouse liable for an understatement. Such factors include the fact that the nonrequesting spouse has not fulfilled support obligations, or that the spouses are divorced, legally separated, or have not been members of the same household for the 12 months directly preceding the election. One commentator suggested that whether the spouses are divorced or legally separated, and the duration of the spouses' separation, should not be relevant to a determination of equity. The language in the proposed regulations was used in an attempt to be consistent with the marital status determination in section 6015(c). After further consideration, the Treasury and IRS have determined that, as the rules regarding equity under section 6015(b) are the same as those developed under section 6013(e), the final regulations should adopt the language that was used in former § 1.6013-5 regarding the couple's marital status. Thus, although the final regulations do not adopt the commentator's recommendation, the final regulations amend the language of § 1.6015-2(d) of the proposed regulations to be consistent with the language regarding equity under former § 1.6013-5, which provided that facts relevant to the determination of equity include whether the requesting spouse was abandoned by the nonrequesting spouse and whether the spouses are divorced or separated.

Section 1.6015-2(d) of the proposed regulations cross-references Rev. Proc. 2000-15 (2000-1 C.B. 447), for additional guidance on the definition of inequitable. Two commentators suggested that this cross-reference was inappropriate because the public did not have an opportunity to comment on the procedures in Rev. Proc. 2000-15. The procedures in Rev. Proc. 2000-15 were originally published in Notice 98-61 (1998-2 C.B. 756). Notice 98-61 was published on December 21, 1998, and the Treasury and IRS specifically requested comments on the procedures prescribed therein. The comment period was extended from April 30, 1999, to June 30, 1999, by Notice 99-29 (1999-1 C.B. 1101). Those procedures were finalized, with minor changes, in Rev. Proc. 2000-15, in January 2000. In addition, as the proposed regulations cross-referenced Rev. Proc. 2000-15, the procedures prescribed therein were again subject to comment during the comment period for the proposed regulations. No such comments were received.

Both §§ 1.6015-2 and 1.6015-4 require a determination of whether it was inequitable to hold a requesting spouse liable, and such a determination should be consistent under both relief provisions. Thus, it is appropriate for the final regulations to cross-reference the procedures for determining whether it is inequitable to hold a requesting spouse liable as outlined in Rev. Proc. 2000-15. The final regulations do not adopt this recommendation.

Section 1.6015-3 of the proposed regulations provides the rules regarding the allocation of a deficiency under section 6015(c) for spouses who are no longer married, legally separated, or not members of the same household.

Section 1.6015-3(a) of the proposed regulations provides that spouses who are no longer married, legally separated, or who have not been members of the same household for the 12 months preceding the election may allocate a deficiency between the spouses in proportion to each spouse's share of the deficiency. Section 1.6015-3(b)(1) of the proposed regulations defines divorced as a requesting spouse having a decree of divorce that is recognized in the jurisdiction in which the requesting spouse resides. Section 1.6015-3(b)(2) defines legally separated as a separation that is recognized under the laws of the jurisdiction in which the requesting spouse resides. Several commentators suggested that the final regulations cross-reference the rules of section 7703, and the regulations thereunder, for a determination of whether a requesting spouse is divorced or legally separated. The final regulations adopt this recommendation.

Section 1.6015-3(b)(3)(i) of the proposed regulations defines members of the same household and provides that spouses are considered members of the same household if one of the spouses is temporarily absent from the household, and the household is maintained in anticipation of that spouse's return. Such temporary absences include, but are not limited to, incarceration, hospitalization, business travel, vacation travel, military service, or education away from home. One commentator suggested that the inclusion of incarceration and hospitalization as temporary absences was inappropriate under the circumstances of a typical case where a spouse is requesting relief from joint and several liability. Section 6015(c), however, provides relief to spouses who are divorced, widowed, legally separated, or who were not members of the same household for the 12 months preceding the election. H.R. Conf. Rept. No. 599, 105th Cong., 2d Sess. 252 (1998); S. Rep. No. 105-174 (1998). The Treasury and IRS have interpreted “not members of the same household” as meaning that the spouses live apart and are estranged. Thus, if the spouses live apart due to a temporary absence, but the household is being maintained in anticipation of the absent spouse's return, then the spouses are still considered members of the same household. The exceptions regarding temporary absences are also consistent with the regulations under section 152, regarding temporary absences for purposes of a dependency exemption. The election to allocate liability is not available to spouses who are not divorced, widowed, legally separated, or living apart and estranged. Although the language in the final regulations was modified to more closely track the language of the regulations under section 152, the final regulations do not adopt this recommendation.

One commentator suggested that, because the election to allocate liability was meant to address the situation where spouses were divorced, widowed, or estranged, the final regulations should adopt a rule that spouses who indefinitely maintain separate households (the spouses have jobs in different cities, for example) but who are not estranged are considered members of the same household for purposes of this provision. This clarification is adopted in the final regulations.

In addition, § 1.6015-3(a) of the final regulations clarifies that, for purposes of section 6015(c), the marital status of a deceased requesting spouse is determined on the earlier of the date of the election or the date of the requesting spouse's death in accordance with section 7703(a)(1).

Section 1.6015-3(c)(2) of the proposed regulations provides that relief under section 6015(c) is not available if the IRS demonstrates that the requesting spouse had actual knowledge of the item giving rise to the deficiency at the time he or she signed the return. The proposed regulations adopt the holding in Cheshire v. Commissioner, 115 T.C. 183 (2000), aff'd, 282 F.3d 326 (5th Cir. 2002), that, in an omission of income case, the relevant inquiry is whether the requesting spouse had actual knowledge of the item, rather than whether the requesting spouse had actual knowledge of the tax consequences of the item. Several commentators suggested that the regulations provide that actual knowledge of the item means actual knowledge of the proper tax treatment of the item. The legislative history to section 6015(c) provides an example of a requesting spouse who had actual knowledge of a portion of the nonrequesting spouse's self-employment income that was omitted from the return. See H.R. Conf. Rep. No. 599, 105th Cong., 2d Sess. 253 (1998). The example provides that the requesting spouse remains liable for the portion of the income tax and self-employment tax deficiency attributable to the portion of the self-employment income of which the requesting spouse had actual knowledge. Id. Nothing in the example indicates that the IRS would have to establish that such spouse had actual knowledge that self-employment income was subject to income tax and self-employment tax in order to invalidate the requesting spouse's section 6015(c) election under section 6015(c)(3)(C). In addition, in many cases, neither spouse may know the proper tax treatment of an item, and both spouses may have equal knowledge regarding the item. The fact that the spouse to whom the item is not attributable does not understand the intricacies of tax law should not be relevant to a determination of whether the spouse had actual knowledge of the item. Therefore, the final regulations do not adopt the recommendation to have the regulations provide that actual knowledge of the item means actual knowledge of the proper tax treatment of the item.

The Tax Court also held that, in an erroneous deduction case, the relevant inquiry is whether the requesting spouse had actual knowledge of the factual circumstances which made the item unallowable as a deduction, rather than whether the requesting spouse knew the proper tax consequences of the item. King v. Commissioner, 116 T.C. 198 (2001). The final regulations adopt the standard for erroneous deductions set forth in King in § 1.6015-3(c)(2)(i)(B)( 1 ).

Section 1.6015-3(c)(2)(i)(B)( 2 ) of the final regulations also clarifies that if a deduction or credit is fictitious or inflated, the relevant inquiry is whether the requesting spouse had actual knowledge that the expense was not incurred, or not incurred to that extent.

Section 1.6015-3(c)(2)(iii) of the proposed regulations provides that one factor that may be relied upon in demonstrating that a requesting spouse had actual knowledge of an item giving rise to a deficiency is whether the requesting spouse deliberately avoided learning about the item. Several commentators suggested that this factor was inappropriate in that it would harm those individuals who do not pay attention to the family finances, or who are afraid to confront the nonrequesting spouse about financial matters. This rule, however, addresses situations where the requesting spouse makes a deliberate effort to avoid learning about an item in an attempt to be shielded from liability. For an example of deliberate avoidance, see United States v. Campbell, 977 F.2d 854 (4th Cir. 1992) (Criminal money laundering case where the Fourth Circuit found that a finding of knowledge may be made by inferences drawn when a party deliberately closes his or her eyes to what would otherwise be obvious, i.e., willful blindness to the existence of a fact).

As discussed above in section 1.B. of this preamble, section 6015(c)(3)(C) provides that the limitation on a requesting spouse's ability to allocate an erroneous item to the nonrequesting spouse when the requesting spouse had actual knowledge of that item does not apply if the requesting spouse establishes that he or she signed the return under duress. When a requesting spouse signs a return under duress, it is not that spouse's return, and accordingly, the spouse is not jointly and severally liable for the tax on that return. Thus, such spouse does not need the relief from joint and several liability provided by section 6015. The final regulations interpret the “duress” provision in section 6015(c)(3)(C) to mean that a requesting spouse in an abusive situation who does not establish that he or she signed the joint return under duress and elects relief from joint and several liability can receive such relief regardless of the requesting spouse's knowledge of the erroneous item at the time the return was signed. Although the requesting spouse may have voluntarily signed the joint return without a direct threat of abuse from the nonrequesting spouse, he or she may have not challenged the content of the joint return due to a long history of abuse from the nonrequesting spouse, resulting in a general fear of the nonrequesting spouse's reprisal. Thus, § 1.6015-3(c)(2)(v) of the final regulations provides that if a requesting spouse establishes that he or she was the victim of domestic abuse prior to the time the return was signed, and that, as a result of the prior abuse, the requesting spouse did not challenge the treatment of any items on the return for fear of the nonrequesting spouse's reprisal, the actual knowledge limitation in § 1.6015-3(c)(2) will not apply.

Section 1.6015-3 of the proposed regulations provides that the portion of a deficiency for which a requesting spouse remains liable will be increased (up to the entire amount of the deficiency) by the value of any disqualified asset that is transferred to the requesting spouse. A disqualified asset is defined as that which is transferred for the purpose of avoidance of tax or payment of tax. Any asset transferred from the date that is 1 year prior to the date the first letter of proposed deficiency (30-day letter) is mailed, is presumed disqualified. The presumption will not apply if the asset is transferred pursuant to a divorce decree or separate maintenance agreement. Two commentators suggested that the use of the terms divorce decree and separate maintenance agreement is inconsistent with the language of the statute. The final regulations adopt this recommendation by amending the language of the regulation to read “decree of divorce or separate maintenance or written instrument incident to such decree.”

One commentator suggested that there should be a de minimis exception to the disqualified asset limitation of $5,000. The Treasury and IRS have determined that a de minimis exception to the disqualified asset rule is inappropriate. The disqualified asset rule limits relief under section 6015(c) when an asset is transferred to the requesting spouse for the purpose of avoidance of tax or payment of tax. The requesting spouse's participation in the attempt to avoid tax or the payment of tax should prevent the spouse from obtaining relief no matter how small the value of the asset. Thus, the final regulations do not adopt this recommendation for a de minimis exception.

One commentator suggested that an example of when a requesting spouse overcomes the disqualified asset presumption in § 1.6015-3(c)(3)(iii) be included in the final regulations. The final regulations adopt this recommendation.

One commentator suggested that some assets should be disqualified, even if they are transferred pursuant to a decree of divorce or separate maintenance or a written instrument incident to such a decree, if it can be shown that the assets are transferred for the purpose of avoidance of tax or payment of tax. The final regulations adopt this recommendation by clarifying the rule. A disqualified asset is defined as that which is transferred for the purpose of avoidance of tax or payment of tax. Regardless of the situation, if the asset is transferred for that purpose, it is a disqualified asset. The rule regarding a transfer pursuant to a decree of divorce or separate maintenance provides that the “presumption” that an asset is disqualified will not apply if the asset is transferred pursuant to a decree unless the IRS can establish that the asset was transferred for the purpose of avoidance of tax or the payment of tax. If, however, in the absence of a decree, the requesting spouse cannot establish that the purpose of the transfer was not the avoidance of tax or payment of tax, the asset will be disqualified, and its value will be added to the amount of the deficiency for which the requesting spouse remains liable.

Section 1.6015-3(d)(3) of the proposed regulations provides that a requesting spouse seeking to allocate liability under section 6015(c) has the burden of proof to establish the proper allocation of items. One commentator suggested that the final regulations provide an exception to this rule for cases where the requesting spouse is unable to locate the appropriate documents to establish the proper allocation. Section 6015(c)(2) places the burden on the requesting spouse. The final regulations do not adopt this recommendation.

Section 1.6015-3(d)(4)(ii) of the proposed regulations provides that any portion of a deficiency that is attributable to an item allocable solely to one spouse and that results from the disallowance of a credit, or a tax or addition to tax (other than a tax imposed by section 1 or 55) is allocated separately to that spouse. One commentator suggested that such items should be allocated proportionately between the spouses instead of solely to one spouse or the other. Section 6015(d)(2) provides that if a deficiency is attributable to the disallowance of a credit, or any tax (other than tax imposed by section 1 or 55) required to be included with the joint return, and the item is allocated to one individual, the deficiency shall be allocated to that individual. The item will not be subject to the proportionate allocation in section 6015(d)(1). The statutory language of section 6015(d)(2) suggests that separate treatment of items is only appropriate when the item is allocable solely to one spouse or the other. Thus, the final regulations adopt this recommendation by providing that the allocation of taxes and credits attributable to both spouses will be determined by the IRS on a case-by-case basis.

Section 1.6015-3(d)(4)(iii) of the proposed regulations provides that any portion of a deficiency relating to the liability of a child of the requesting and nonrequesting spouse will be allocated jointly to both spouses. If one of the spouses has sole custody of the child, the proposed regulations provided that the liability will be allocated solely to that spouse. One commentator suggested that the liability should be allocated based on the child's residence; another commentator suggested that the liability be allocated based on which parent is in control of the child's finances; and a third commentator suggested that it is not clear to which spouse a child's liability should be allocated. The final regulations address these recommendations, in part, by removing the exception to allocating the child's liability jointly to both parents when only one parent has custody of the child.

Section 1.6015-4 of the proposed regulations provides the rules regarding equitable relief from joint and several liability under section 6015(f). Section 1.6015-4(b) of the proposed regulations provides that relief under § 1.6015-4 is not available to circumvent the “no refund” rule of § 1.6015-3(c)(1). Several commentators suggested that this rule be removed. Under Rev. Proc. 2000-15, refunds under section 6015(f) are generally limited to amounts paid pursuant to an installment agreement, on which the requesting spouse is not in default, from the date the claim for relief is filed until a final determination is made. The rule regarding installment payments is intended to encourage individuals to remain current on their installment agreements. Therefore, the Treasury and IRS determined that limited refunds would be appropriate to encourage such compliance. Section 6015(g)(3), however, precludes the allowance of a credit or refund under section 6015(c). It would be inappropriate to circumvent the rule of section 6015(g)(3) by giving equitable relief in the form of a refund when the requesting spouse qualifies for relief under section 6015(c). Thus, the final regulations do not adopt this recommendation.

Section 1.6015-5(b)(2) of the proposed regulations defines collection activity as, among other things, an administrative levy or seizure described by section 6331. Section 1.6015-5(b)(2) of the final regulations provides that the term collection activity includes a collection due process (CDP) notice under section 6330. That notice, which occurs in all cases before levy or seizure except in the case of levies on state tax refunds and in jeopardy situations, provides taxpayer notice of the Service's intent to levy and the taxpayer's right to a pre-levy CDP hearing. This change is consistent with the legislative history of section 6015(e). See H.R. Conf. Rep. No. 599, 105th Cong. 2d Sess. 250-251 (1998).

Section 1.6015-6 of the proposed regulations provides rules regarding the nonrequesting spouse's right to notice and to participate in the administrative determination of whether the requesting spouse is entitled to relief under any of the provisions of section 6015. Some commentators suggested that the proposed regulations are overly broad in providing rights to the nonrequesting spouse, while other commentators suggested that the proposed regulations unnecessarily limit the rights of the nonrequesting spouse. One commentator suggested that the IRS have minimal contact with the nonrequesting spouse and that the nonrequesting spouse not be automatically notified at the administrative level. This commentator also suggested that all of the information submitted by the nonrequesting spouse be shared with the requesting spouse, but not vice versa. The commentator suggested that the nonrequesting spouse should only be given information submitted by the requesting spouse if the nonrequesting spouse files his or her own request for relief. Section 6015 specifically provides the nonrequesting spouse with two opportunities to participate in the determination of whether the requesting spouse is entitled to relief (once at the administrative level under section 6015(h)(2), and once when the petition has been filed in the Tax Court under section 6015(e)(4)). The nonrequesting spouse's participation is necessary to ensure that relief is only granted in meritorious cases. The final regulations do not adopt these recommendations.

Section 1.6015-6(a)(1) of the proposed regulations provides that, at the request of one spouse, the IRS will omit from shared documents the spouse's new name, address, employer, telephone number, and any other information that would reasonably identify the spouse's location. One commentator suggested that this information always be omitted from shared documents regardless of whether a spouse requests such treatment. The final regulations do not adopt this recommendation. Instead, this statement is removed from the final regulations. To address this concern, however, the Internal Revenue Manual provides that the IRS will omit from shared documents any information that could reasonably identify a spouse's location.

A commentator made several suggestions to help ensure that the nonrequesting spouse will have a meaningful opportunity to participate in the administrative determination. One suggestion is that the nonrequesting spouse have access to all information submitted by the requesting spouse, including the basis for relief. Under the proposed regulations, the IRS has the discretion to share information submitted by one spouse with the other spouse. It is the Service's practice to share information at the request of one of the spouses. The final regulations adopt this recommendation by clarifying that information will be shared on request as long as the information would not impair tax administration.

Another suggestion was that the nonrequesting spouse be afforded administrative appeal rights if the nonrequesting spouse disagrees with the Service's determination that the requesting spouse is entitled to relief. The nonrequesting spouse's participation is essential to a proper determination of relief. The nonrequesting spouse may participate during the preliminary determination of relief, and if the requesting spouse files an administrative appeal or a petition in court, the nonrequesting spouse may participate in those proceedings as well. In addition, if a requesting spouse files a petition in Tax Court, the IRS is precluded from settling with the requesting spouse unless the nonrequesting spouse agrees to the settlement. See Corson v. Commissioner , 114 T.C. 354 (2000). The nonrequesting spouse is afforded a meaningful opportunity to participate in the administrative determination of relief, as well. Thus, the final regulations do not prohibit the nonrequesting spouse from administratively appealing the IRS's determination that the requesting spouse is entitled to relief from joint and several liability.

Section 1.6015-7 of the final regulations reflects changes to section 6015 that were made by section 313 of the CRA with respect to waivers and the 90-day period for filing a Tax Court petition.

Section 1.6015-7(c)(1) of the final regulations reflects the fact that when the requesting spouse elects relief under § 1.6015-2 or 1.6015-3, the IRS is restricted from taking collection actions until a decision of the Tax Court becomes final. Section 1.6015-7(c)(1) also reflects the fact that section 6015(e)(1)(B)(i) provides that rules similar to the rules of section 7485 will apply with respect to collection actions. Section 7485 provides that the IRS may begin collection activity upon the filing of a notice of appeal from a Tax Court decision unless the taxpayer files an appeal bond. Because refunds may be limited under section 6015, a requesting spouse may be denied a refund of amounts collected during the pendency of an appeal proceeding, even if he or she is granted relief on appeal. Therefore, the IRS has determined that at this time it will not begin any collection activities against the requesting spouse upon the filing of a notice of appeal unless the expiration of the statute of limitations on collection is imminent, or that collection will be jeopardized by delay.

It has been determined that these final regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to the regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

The principal authors of the regulations are Bridget E. Finkenaur and Charles A. Hall of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division).

(2) Exception for agreements relating to TEFRA partnership proceedings. The rule in paragraph (c)(1) of this section regarding the unavailability of relief from joint and several liability when the liability to which the claim for relief relates was the subject of a prior closing agreement entered into by the requesting spouse, shall not apply to an agreement described in section 6224(c) with respect to partnership items (or any penalty, addition to tax, or additional amount that relates to adjustments to partnership items) that is entered into while the requesting spouse is a party to a pending partnership-level proceeding conducted under the provisions of subchapter C of chapter 63 of subtitle F of the Internal Revenue Code (TEFRA partnership proceeding). If, however, a requesting spouse enters into a closing agreement pertaining to any penalty, addition to tax, or additional amount that relates to adjustments to partnership items, at a time when the requesting spouse is not a party to a pending TEFRA partnership proceeding ( e.g., in connection with an affected items proceeding), then the provisions of paragraph (c)(1) shall apply. Similarly, if a requesting spouse enters into a closing agreement with respect to both partnership items (including affected items) and nonpartnership items, while the requesting spouse is a party to a pending TEFRA partnership proceeding, the provisions of paragraph (c)(1) shall apply to the portion of the closing agreement that relates to nonpartnership items and the provisions of this paragraph (c)(2) shall apply to the remainder of the closing agreement.

(3) Examples. The following examples illustrate the rules of this paragraph (c):

(d) Fraudulent scheme. If the Secretary establishes that a spouse transferred assets to the other spouse as part of a fraudulent scheme, relief is not available under section 6015, and section 6013(d)(3) applies to the return. For purposes of this section, a fraudulent scheme includes a scheme to defraud the Service or another third party, including, but not limited to, creditors, ex-spouses, and business partners.

(e) Res judicata and collateral estoppel. A requesting spouse is barred from relief from joint and several liability under section 6015 by res judicata for any tax year for which a court of competent jurisdiction has rendered a final decision on the requesting spouse's tax liability if relief under section 6015 was at issue in the prior proceeding, or if the requesting spouse meaningfully participated in that proceeding and could have raised relief under section 6015. A requesting spouse has not meaningfully participated in a prior proceeding if, due to the effective date of section 6015, relief under section 6015 was not available in that proceeding. Also, any final decisions rendered by a court of competent jurisdiction regarding issues relevant to section 6015 are conclusive and the requesting spouse may be collaterally estopped from relitigating those issues.

(f) Community property laws —(1) In general. In determining whether relief is available under § 1.6015-2, 1.6015-3, or 1.6015-4, items of income, credits, and deductions are generally allocated to the spouses without regard to the operation of community property laws. An erroneous item is attributed to the individual whose activities gave rise to such item. See § 1.6015-3(d)(2).

(2) Example. The following example illustrates the rule of this paragraph (f):

(g) Scope of this section and §§ 1.6015-2 through 1.6015-9 . This section and §§ 1.6015-2 through 1.6015-9 do not apply to any portion of a liability for any taxable year for which a claim for credit or refund is barred by operation of law or rule of law.

(h) Definitions —(1) Requesting spouse. A requesting spouse is an individual who filed a joint return and elects relief from Federal income tax liability arising from that return under § 1.6015-2 or 1.6015-3, or requests relief from Federal income tax liability arising from that return under § 1.6015-4.

(2) Nonrequesting spouse. A nonrequesting spouse is the individual with whom the requesting spouse filed the joint return for the year for which relief from liability is sought.

(3) Item. An item is that which is required to be separately listed on an individual income tax return or any required attachments. Items include, but are not limited to, gross income, deductions, credits, and basis.

(4) Erroneous item. An erroneous item is any item resulting in an understatement or deficiency in tax to the extent that such item is omitted from, or improperly reported (including improperly characterized) on an individual income tax return. For example, unreported income from an investment asset resulting in an understatement or deficiency in tax is an erroneous item. Similarly, ordinary income that is improperly reported as capital gain resulting in an understatement or deficiency in tax is also an erroneous item. In addition, a deduction for an expense that is personal in nature that results in an understatement or deficiency in tax is an erroneous item of deduction. An erroneous item is also an improperly reported item that affects the liability on other returns (e.g., an improper net operating loss that is carried back to a prior year's return). Penalties and interest are not erroneous items. Rather, relief from penalties and interest will generally be determined based on the proportion of the total erroneous items from which the requesting spouse is relieved. If a penalty relates to a particular erroneous item, see § 1.6015-3(d)(4)(iv)(B).

(5) Election or request. A qualifying election under § 1.6015-2 or 1.6015-3, or request under § 1.6015-4, is the first timely claim for relief from joint and several liability for the tax year for which relief is sought. A qualifying election also includes a requesting spouse's second election to seek relief from joint and several liability for the same tax year under § 1.6015-3 when the additional qualifications of paragraphs (h)(5)(i) and (ii) of this section are met—

(i) The requesting spouse did not qualify for relief under § 1.6015-3 when the Internal Revenue Service considered the first election solely because the qualifications of § 1.6015-3(a) were not satisfied; and

(ii) At the time of the second election, the qualifications for relief under § 1.6015-3(a) are satisfied.

(i) [Reserved]

(j) Transferee liability —(1) In general. The relief provisions of section 6015 do not negate liability that arises under the operation of other laws. Therefore, a requesting spouse who is relieved of joint and several liability under § 1.6015-2, 1.6015-3, or 1.6015-4 may nevertheless remain liable for the unpaid tax (including additions to tax, penalties, and interest) to the extent provided by Federal or state transferee liability or property laws. For the rules regarding the liability of transferees, see sections 6901 through 6904 and the regulations thereunder. In addition, the requesting spouse's property may be subject to collection under Federal or state property laws.

(2) Example. The following example illustrates the rule of this paragraph (j):

On January 19, 2001, MSHA published a final rule addressing diesel particulate matter (DPM) exposure of underground metal and nonmetal miners (66 FR 5706). The final rule establishes new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines and, among other things, requires operators of underground mines to train miners about the hazards of being exposed to DPM. The effective date of the rule was listed as March 20, 2001 (66 FR 5706). Section 57.5060 of the rule establishes an interim concentration limit of 400 micrograms of total carbon per cubic meter of air to become applicable after July 19, 2002, and a final concentration limit of 160 micrograms to become applicable after January 19, 2006 (66 FR 5706, 5708, 5907).

On January 29, 2001, Anglogold (Jerritt Canyon) Corp. and Kennecott Greens Creek Mining Company filed a petition for review of the rule in the District of Columbia Circuit. On February 7, 2001, the Georgia Mining Association, the National Mining Association, the Salt Institute, and MARG Diesel Coalition filed a similar petition in the Eleventh Circuit. On March 14, 2001, Getchell Gold Corporation petitioned for review of the rule in the District of Columbia Circuit. The three petitions have been consolidated and are pending in the District of Columbia Circuit. The United Steelworkers of America (USWA) has intervened in the Anglogold case.

While these challenges were pending, the Anglogold petitioners filed with MSHA an application for reconsideration and amendment of the final rule and to postpone the effective date of the final rule pending judicial review. The Georgia Mining petitioners similarly filed with MSHA a request for an administrative stay or postponement of the effective date of the rule.

On March 15, 2001 MSHA delayed the effective date of the rule until May 21, 2001, in accordance with a January 20, 2001 memorandum from the President's Chief of Staff (66 FR 15032). The delay was necessary to give Department officials the opportunity for further review and consideration of new regulations. Ibid. On May 21, 2001 (66 FR 27863), MSHA published a notice in the Federal Register delaying the effective date of the final rule until July 5, 2001. The purpose of this delay was to allow the Department the opportunity to engage in further negotiations to settle the legal challenges to this rule.

As a result of a partial settlement agreement, MSHA published two documents in the Federal Register on July 5, 2001, addressing the January 19, 2001 DPM final rule. One document (66 FR 35518) delayed the effective date of § 57.5066(b) regarding the evidence and the tagging provisions of the Maintenance standard; clarified the effective dates of certain provisions of the final rule; and gave correction amendments.

The second document (67 FR 9180) addressed a proposed rule to clarify § 57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new paragraph (b)(3) to § 57.5067 regarding the transfer of existing equipment from one underground mine to another underground mine. MSHA finalized these changes to the January 19, 2001 rule and published them in the Federal Register on February 27, 2002 (67 FR 9180). The final rule was effective on March 29, 2002.

Also, MSHA agreed to conduct joint sampling with industry and labor at 31 underground mines to determine existing concentration levels of DPM; assess the performance of the SKC sampler and the NIOSH Analytical Method 5040; assess the feasibility of achieving compliance with the standard's concentration limits at the 31 mines; and, to assess the impact of interferences on the sample in the metal and nonmetal underground mining environment before the limits established in the final rule become effective. Sampling and data analyses are completed, and MSHA is in the process of developing the final report.

Settlement negotiations continued on the remaining unresolved issues in the litigation. On July 15, 2002, the parties signed an agreement that is the basis for this Federal Register document delaying certain effective dates.

As of July 20, 2002, MSHA will enforce the following provisions of the final rule as published on January 19, 2001 (66 FR 5706): § 57.5060(a), addressing the interim concentration limit of 400 micrograms of total carbon per cubic meter of air; § 57.5061, addressing compliance determinations; and § 57.5071, addressing environmental monitoring. MSHA will continue to enforce § 57.5065, Fueling practices; § 57.5066, Maintenance standards; § 57.5067, Engines; § 57.5070, Miner training; and § 57.5075, Diesel particulate records, as they relate to the requirements of the rule that are in effect on July 20, 2002.

The settlement agreement provides as follows:

The Coast Guard published a permanent security zone in the Federal Register on June 7, 2002 (67 FR 39294). This rule added § 165.908 to title 33 of the Code of Federal Regulations.

As published, the location of the security zone was described incorrectly. While the landmarks included in the final rule were correct, some of the coordinates were incorrect. In addition, the section number used in the amendatory instruction for the rule was incorrect. This rule corrects the coordinates and section number.

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet home page at http://www.epa.gov/ . To access this document, on the home page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html , a beta site currently under development. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm .

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0105. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of (67 FR 3700, January 25 2002) (FRL-6819-2), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996 (Public Law 104-170), announcing the filing of a pesticide petition (PP 1F6301) by E. I. Du Pont de Nemours and Company. This notice included a summary of the petition prepared by E. I. Du Pont de Nemours and Company, the registrant. The Agency received one e-mail letter from consumers/growers that believe there should be zero pesticide levels on human and animal foods.

The petition requested that 40 CFR 180.564 be amended by establishing a tolerance for combined residues of the insecticide indoxacarb [(S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl) [4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate] and its R-enantimomer [(R)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate], in or on alfalfa, forage at 10 parts per million (ppm), alfalfa, hay at 50 ppm, peanut at 0.01 ppm, peanut, hay at 40 ppm, potato at 0.01 ppm, soybean, seed at 0.80 ppm, aspirated grain fractions at 45 ppm, and soybean, hulls at 4.0 ppm. Additionally, the petition requested an increase in tolerance levels for head lettuce, milk, milk fat, meat, fat, and meat by-products of cattle, goat, hog, horse, and sheep based on a proposed increase in the labeled use rate for head lettuce and on potential changes in residue levels in livestock diets. The proposed increases are for head lettuce at 5.0 ppm, meat of cattle, goat, hog, horse, and sheep at 0.05 ppm, fat of cattle, goat, hog, horse, and sheep at 1.5 ppm, meat by-products of cattle, goat, hog, horse, and sheep at 0.03 ppm, milk at 0.15 ppm, and milk, fat at 4.0 ppm.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for combined residues of indoxacarb on alfalfa, forage at 10 ppm, alfalfa, hay at 50 ppm, peanut at 0.01 ppm, peanut, hay at 40 ppm, potato at 0.01 ppm, soybean, seed at 0.80 ppm, aspirated grain fractions at 45 ppm, soybean, hulls at 4.0 ppm, lettuce, head at 5.0 ppm, meat of cattle, goat, hog, horse, and sheep at 0.05 ppm, fat of cattle, goat, hog, horse, and sheep at 1.5 ppm, meat by-products of cattle, goat, hog, horse, and sheep at 0.03 ppm, milk at 0.15 ppm, and milk, fat at 4.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance(s) follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by indoxacarb are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which the NOAEL from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q * ) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q * approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q * is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for indoxacarb used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.564) for the combined residues of indoxacarb, in or on a variety of raw agricultural commodities. Including tolerances already established for: Apple at 1.0 ppm, apple, wet pomace at 3.0 ppm, brassica, head and stem, subgroup at 5.0 ppm, cattle, goat, horse, sheep, and hog fat at 0.75 ppm, cattle, goat, horse, sheep, and hog meat at 0.03 ppm, cattle, goat, horse, sheep, and hog meat by-products at 0.02 ppm, corn, sweet, forage at 10 ppm, corn, sweet, kernel plus cob with husk removed at 0.02 ppm, corn, sweet stover at 15 ppm, cotton gin by-products at 15 ppm, cotton, undelinted seed at 2.0 ppm, lettuce, head at 4.0 ppm, lettuce, leaf at 10.0 ppm, milk at 0.10 ppm, and milk, fat at 3.0 ppm, pear at 0.20 ppm, and vegetables, fruiting, group at 0.50 ppm. Risk assessments were conducted by EPA to assess dietary exposures from indoxacarb in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: An acute Tier 2 (partially refined analysis) dietary assessment was performed with use of anticipated residues (ARs) from field trial data, processing factors (where applicable), and assumed 100% crop treated (CT). ARs for meat, milk, poultry, and eggs (MMPE) raw agricultural commodities (RACs) were calculated also.

ii. Chronic exposure . In conducting this chronic dietary risk assessment, the Dietary Exposure Evaluation Model (DEEM TM analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Chronic exposure estimates are expressed in mg/kg bwt/day and as a percent of the cPAD. The chronic dietary assessment assumed tolerance level residues, DEEM TM default processing factors, and 100% CT (Tier 1).

iii. Cancer . There is no evidence for mutagenicity and there is no evidence of carcinogenicity in either the rat or mouse. Indoxacarb has been classified as “not likely to be carcinogenic in humans” by the Agency; therefore, no carcinogenic dietary risk analysis was performed.

iv. Anticipated residue and percent crop treated information . Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a Data Call-In for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for indoxacarb, in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical, chemical, and environmental fate characteristics of indoxacarb.

The Agency uses the FQPA Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in ground water. In general, EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The FIRST model is a meta-model of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. PRZM/EXAMS incorporate an index reservoir environment in place of the pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to indoxacarb they are further discussed in the aggregate risk sections.

Based on the PRZM/EXAMS and SCI-GROW models, the estimated environmental concentrations (EECs) of indoxacarb for acute exposures are estimated to be 13.86 parts per billion (ppb) for surface water and 0.02 ppb for ground water. The EECs for chronic exposures are estimated to be 2.47 ppb for surface water and 0.02 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Indoxacarb is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether indoxacarb has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, indoxacarb does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that indoxacarb has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . There is no evidence for either qualitative or quantitative susceptibility. In all developmental studies, the developmental endpoint occurs at the maternal LOAEL or above. Although there is no rabbit developmental toxicity study with indoxacarb, a study is not required since: Studies both using methyl cellulose comparing JW062 in the rabbit and rat demonstrate that the toxicity profiles for the rat and rabbit are similar and that the rat is the more sensitive species; range finding studies in the rat comparing indoxacarb and JW062 indicate that the maternal and external developmental toxicity are comparable; a dietary developmental toxicity study in the rat with JW062 had comparable toxicity to the gavage indoxacarb rat developmental toxicity study. Developmental toxicity only occurred at levels at or above maternal toxicity.

The reproduction toxicity study with JW062 can be used to satisfy the requirement for an indoxacarb study because: Systemic toxicity is at similar doses and of similar magnitude to that observed in subchronic feeding studies with both indoxacarb and JW062; based on the data base, the EPA determined that there was support for using data from dietary studies conducted with JW062 to satisfy the data requirements for indoxacarb.

The Agency has required a developmental neurotoxicity study as confirmatory data due to:

• Clinical signs of neurotoxicity in several studies, males and females, mice and rats, at some doses that do not cause mortality.

• Signs of neurotoxicity in the acute neurotoxicity study rat with indoxacarb (males and females), mortality in males at neurotoxic doses.

• Clinical signs of neurotoxicity in the 90-day toxicity study rat indoxacarb (females), mortality.

• Clinical signs of neurotoxicity in the 90-day toxicity study mouse with the racemic mixture, JW062 (males and females), no mortality in females at neurotoxic doses, mortality in males.

• Clinical signs of neurotoxicity in the 18 month carcinogenicity study mouse with JW062 (males and females) high and mid dose, mortality at the high but no mortality at the mid dose.

• Clinical signs of neurotoxicity in the developmental toxicity study rat with JW062 (using methyl cellulose as the vehicle), at doses causing mortality.

3. Conclusion . The Agency concluded that the FQPA safety factor could be reduced to 1X for indoxacarb.

• There is no indication of quantitative or qualitative increased susceptibility of rats or rabbits to in utero and/or postnatal exposure.

• The requirement of a developmental neurotoxicity study is not based on the criteria reflecting special concern for the developing fetuses or young which are generally used for requiring a DNT study - and a safety factor (e.g., neuropathy in adult animals; central nervous system malformations following prenatal exposure; brain weight or sexual maturation changes in offspring; and/or functional changes in offspring) and therefore, does not warrant an FQPA safety factor; and

• The dietary (food and drinking water) exposure assessments will not underestimate the potential exposures for infants and children There are no registered residential uses at the current time.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water (e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to indoxacarb will occupy 7% of the aPAD for the U.S. population, 41% of the aPAD for females 13 years and older, 6% of the aPAD for all infants less than 1 year old and 12% of the aPAD for children 1 to 6 years old, the children population at greatest exposure. In addition, there is potential for acute dietary exposure to indoxacarb in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 3:

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to indoxacarb from food will utilize 33% of the cPAD for the U.S. population, 48% of the cPAD for infants less than 1 year old and 85% of the cPAD for children 1 to 6 years old, the subpopulation at greatest exposure. There are no residential uses for indoxacarb that result in chronic residential exposure to indoxacarb. Based on the use pattern, chronic residential exposure to residues of indoxacarb is not expected. In addition, there is potential for chronic dietary exposure to indoxacarb in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 4:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Indoxacarb is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Indoxacarb is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . There is no evidence for mutagenicity and there is no evidence of carcinogenicity in either the rat or mouse. Indoxacarb has been classified as “not likely to be carcinogenic in humans” by the Agency; therefore, indoxacarb is not expected to pose a carcinogenic risk.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to indoxacarb residues.

Adequate enforcement methodology (HPLC/UV Method AMR 2712-93) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PRRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov .

There are no established or proposed Codex, Canadian, or Mexican maximum residue limits (MRLs) for residues of indoxacarb; therefore, international harmonization is not an issue at this time.

Therefore, tolerances are established for combined residues of indoxacarb [(S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate] and its R-enantimomer [(R)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate], in or on alfalfa, forage at 10 ppm, alfalfa, hay at 50 ppm, peanut at 0.01 ppm, peanut, hay at 40 ppm, potato at 0.01 ppm, soybean, seed at 0.80 ppm, aspirated grain fractions at 45 ppm, soybean, hulls at 4.0 ppm. Additionally, the petition requested an increase in tolerance levels for head lettuce, milk, milk fat, meat, fat, and meat by-products of cattle, goat, hog, horse, and sheep based on a proposed increase in the labeled use rate for head lettuce and on potential changes in residue levels in livestock diets. The proposed increases are for head lettuce at 5.0 ppm, meat of cattle, goat, hog, horse, and sheep at 0.05 ppm, fat of cattle, goat, hog, horse, and sheep at 1.5 ppm, meat by-products of cattle, goat, hog, horse, and sheep at 0.03 ppm, milk at 0.15 ppm, and milk, fat at 4.0 ppm.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0105 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 16, 2002.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket ID number OPP-2002-0105 to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

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

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

The information presented in this preamble is arranged as follows:

This rule is being promulgated under the authority of Sections 1008, 2002, 4004, and 4010 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6907, 6912, 6945, and 6949a).

Project XL is an EPA initiative developed to allow regulated entities to achieve better environmental results at less cost. Project XL—“eXcellence and Leadership”—was announced on March 16, 1995 ( see 60 FR 27282, May 23, 1995). Detailed descriptions of Project XL have been published previously in numerous public documents which are generally available electronically via the Internet at http://www.epa.gov/projectxl/ . Briefly, Project XL gives a limited number of regulated entities the opportunity to develop their own pilot projects and alternative strategies to achieve environmental performance that is superior to what would be achieved through compliance with current and reasonably anticipated future regulations. These efforts are crucial to the Agency's ability to test new regulatory strategies that reduce regulatory burden and promote economic growth while achieving better environmental and public health protection. The Agency intends to evaluate the results of this and other XL projects to determine which specific elements of the projects, if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Project XL is intended to allow EPA to experiment with new or pilot projects that provide alternative approaches to regulatory requirements, both to assess whether they provide benefits at the specific facility affected, and whether these projects should be considered for wider application. Such pilot projects allow EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. EPA may modify rules, on a site- or State-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute.

On September 29, 2000, EPA's Region 3 and Office of Solid Waste, joined by Virginia Department of Environmental Quality, and USA Waste of Virginia, Inc. signed the Final Project Agreement (FPA) for the project ( see Docket No. F-2001-WVLP-FFFFF, Item 2.2, or the Internet at http://www.epa.gov/ProjectXL/virginialandfills/fpa.pdf. ) The FPA is a non-binding written agreement between the project sponsor and regulatory agencies which describes the project in detail, discusses criteria to be met, identifies performance goals and indicators, and outlines the administration of the agreement.

A bioreactor landfill is generally defined as a landfill operated to transform and stabilize the readily and moderately decomposable organic constituents of the waste stream by purposeful control to enhance microbiological processes. Bioreactor landfills often employ addition of liquids such as leachate. A byproduct of the waste decomposition process is landfill gas, which includes methane, carbon dioxide, hazardous air pollutants and volatile organic compounds (VOC). Landfill gases are produced sooner in a bioreactor than in a conventional landfill. Therefore, bioreactors typically incorporate state-of-the-art landfill gas collection systems to collect and control landfill gas upon start up of the liquid addition process.

On April 6, 2000, EPA published a document in the Federal Register requesting information on bioreactor landfills, because the Agency is considering whether and to what extent the Criteria for Municipal Solid Waste Landfills, 40 CFR part 258, should be revised to allow for leachate recirculation over alternative liners in MSWLFs (65 FR 18015). EPA is seeking information about liquid additions and leachate recirculation in MSWLFs to the extent currently allowed, i.e., in MSWLFs designed and constructed with a composite liner as specified in 40 CFR 258.40(a)(2).

Proponents of bioreactor technology note that operating MSWLFs as bioreactors provides a number of environmental benefits, including an increased rate of waste decomposition, which in turn would extend the operating life of the landfill and lessen the need for additional landfill space or other disposal options. Bioreactors also decrease, or at times eliminate, the quantity of leachate requiring treatment and offsite disposal. Several studies have shown that leachate quality improves over time when leachate is recirculated on a regular basis. For all of these reasons, bioreactors are expected to decrease potential environmental risks and costs associated with leachate management, treatment and offsite disposal. Additionally, use of bioreactor techniques is expected to shorten the length of time the liner will be exposed to leachate and this should lower the long term potential for leachate migration into the subsurface environment. Bioreactors are also expected to reduce post-closure care costs and risks, due to the accelerated, controlled settlement of the solid waste during landfill operation. Finally, bioreactors provide for greater opportunity for recovery of methane gas for energy production since a larger quantity of methane is produced earlier than in a normal MSWLF.

Several additional related XL pilot projects involving operation of landfills as bioreactors are being implemented throughout the country. These additional bioreactor projects will enable EPA to evaluate benefits of different alternative liners and leachate recirculation systems under various climatic and operating conditions. As expressed in the above-referenced April 2000 Federal Register document, EPA is interested in assessing the performance of landfills operated as bioreactors, and these XL projects are expected to contribute valuable data.

The Virginia Project XL Landfills and other XL projects will provide additional information on the performance of MSWLFs when liquids are added to the landfill. The Agency is also interested in assessing how different types of alternative liners perform when liquids are added to the landfill, including maintaining a hydraulic head at acceptable levels.

The Virginia Project XL Landfills consists of the Maplewood Landfill and the King George Landfill. The Maplewood Landfill is located in Amelia County, Virginia, approximately 30 miles southwest of Richmond, Virginia. The Maplewood Landfill will cover a total area of about 404 acres upon completion. Construction of the first phases started in 1992. Construction of the most recent phase was completed in 1997. The King George County Landfill is located in King George County, Virginia, approximately 50 miles north-northeast of Richmond, Virginia. The King George Landfill will cover a total area of about 290 acres upon completion. The first phase of liner system construction began in 1996. Construction of additional liner system areas has been performed every year since 1996.

The Maplewood Landfill is owned and operated by USA Waste of Virginia, Inc., and the King George Landfill is owned by King George County and operated by King George Landfills, Inc. USA Waste of Virginia, Inc. and King George Landfills, Inc. are both subsidiaries of Waste Management, Inc., and will be referred to collectively hereinafter as “Waste Management.” Maplewood Landfill and King George Landfill, both of which are municipal solid waste landfills (MSWLFs), will hereinafter be referred to collectively as the “Virginia Project XL Landfills.”

Today's action finalizes the site-specific rule for the Virginia Project XL Landfills without modification of the proposed rule. EPA proposed adding a new subsection (c) to 40 CFR 258.41 that would apply only to the Virginia Project XL Landfills and allow the owner/operator to add non-hazardous bulk or non-containerized liquids, including leachate, to Cell 3 of the King George Landfill and Phases 1 and 2 of the Maplewood Landfill, as long as these areas meet the maintenance, operational, monitoring and other requirements set forth in § 258.41(c). See Section IV of this preamble for a full description of the regulatory relief provided for this project.

As a result of the December 28, 2001, proposed rule for the Virginia Project XL Landfills, EPA received two comments from two national organizations, one representing the solid waste management industry and one from a recycling advocacy group. EPA's Response to Comments document (“Response”) and the comment letters are in the RCRA Docket No. F-2002-WVLF-FFFFF for this final rule. The solid waste management trade association supported this Virginia XL Project and did not call for any revisions. The recycling advocacy group submitted extensive comments critical of landfilling solid waste and bioreactor technology in general, and the VA Landfills XL Project and site-specific rule in particular.

Generally, some of the recycling advocacy group comments addressed the legal basis or adequacy of EPA's existing municipal solid waste landfill (MWSLF) criteria, 40 CFR part 258, which are beyond the scope of today's rulemaking. Other comments called for EPA to establish uniform design and operating criteria for all bioreactor landfills. These comments are also beyond the scope of today's rulemaking, which addresses only the Maplewood and King George County landfills. This commenter also addressed the adequacy of landfill gas monitoring, collection, control and reporting requirements for the XL Project. The proposed rule did not include any flexibility to existing regulations addressing these requirements, rather requirements pertaining to landfill gas are governed by Clean Air Act regulations and facility-specific permits ( see Section III.C., below). Finally, the comments suggested testing changes for the XL Project. As explained in greater detail in the Response and in Section IV.B.(below), EPA believes the monitoring, testing and reporting requirements contained in this rule, the Final Project Agreement and State solid waste and air permits will provide sufficient information to characterize the bioreactor operations at the Virginia Project XL Landfills and protect human health and the environment.

This rule will allow for the addition of liquid wastes to certain areas of the Maplewood Landfill and the King George Landfill.

The goal for the Maplewood Landfill is to recirculate as much leachate as is generated at the facility. Based on facility records, the facility generated approximately 3,000,000 gallons of leachate in 1999 (a relatively dry year). Under this XL project, between 3,000,000 and 4,000,000 gallons of liquid will be applied at the landfill per year. The liquid application rate will be an average of 10,960 gallons per day, based on an application rate of 4,000,000 gallons per year. In order to comply with the requirements of the rule and provide the appropriate test conditions for biodegradation of the waste, the exact liquid application rate will be determined by Waste Management during implementation of the project. The project area in the Maplewood Landfill will be in “Phase Development Areas” 1 and 2 (leachate recirculation areas) and 3, 4, and 11 (monitored control areas without leachate recirculation). The total size of the Phase 1, 2, 3, 4 and 11 Phase Development Areas is approximately 48 acres. During dry periods of lower or no leachate generation, liquids other than leachate could also be added, including non-hazardous liquids such as storm water and truck wash water. The liquids will be applied in trenches, excavated into the surface of the landfill in the Phases 1 and 2 areas (approximately 10 acres in size). Phases 3, 4, and 11 will be used as control cells—no liquid will be applied to these areas, only rainwater that naturally falls and percolates beneath the landfill surface will enter the waste in these areas or phases.

The goal for the King George County Landfill is to recirculate as much leachate as is generated at the facility and to add sufficient additional liquid to make a total liquids application of between 7,000,000 and 8,000,000 gallons per year. Based on facility records for the past three years, the facility generates approximately 3,500,000 gallons of leachate per year. Based on estimates of storm water runoff quantities and the storage capacity of the storm water management ponds at the site, approximately 8,000,000 gallons or more of storm water is expected to be made available for application to the landfill waste. The liquid application rate will be, on average, about 22,000 gallons per day based on an estimated application rate of 8,000,000 gallons per year. In order to comply with the requirements of the rule and provide the appropriate test conditions for biodegradation of the waste, the exact liquid application rate will be determined by Waste Management during implementation of the project.

The overall study area in the King George Landfill will be established within the Municipal Solid Waste Cells 2, 3, and 4. The total size of Cells 2, 3, and 4 is approximately 59 acres. Liquid will be applied only in Cell 3, approximately 10 acres in size. Cells 2 and 4 will be control cells in which no liquids will be applied. Cell 1 was being filled with waste in July 2001.

As stated earlier, the bioreactor program that will be implemented at the King George County Landfill involves application to the waste of about twice the quantity of liquid that is applied at the Maplewood Landfill. In the bioreactor at this landfill, conditions will be established that are intended to significantly increase the rate of degradation of waste during the operating life of the landfill to achieve the benefits identified in the FPA. Although the process of recirculating leachate provides much of the moisture needed to enhance biological degradation of waste, research reported in “Active Municipal Waste Landfill Operations: A Biochemical Reactor” (Reinhart, 1995, see Docket No. F-2001-WVLP-FFFFF, Item 4.1) found that the quantity of liquid needed to reach water holding or field capacity of the waste to potentially maximize the rate of biodegradation is typically much greater than the quantity of leachate generated at a MSWLF. As part of the comparison of different rates of liquid addition inherent in this project, sources of liquid other than leachate will be used to supply the additional quantity of liquid needed at the King George Landfill. These sources could include storm water, truck wash water and other non-hazardous liquid waste. For this project, these liquids may be discharged into the landfill leachate storage tanks to supplement the leachate and the resulting mixture will then be distributed over the bioreactor test area.

The liquids application system at the Virginia Project XL Landfills will be constructed using typical trench construction methods and may include other methods developed during the implementation of the program. The construction methods are described in detail in the Application for Project XL Landfill Bioreactor Systems King George County Landfill and Maplewood Recycling and Waste Disposal Facility, submitted to U.S. EPA, prepared by GeoSyntec Consultants, May 30, 2000 (see Docket No. F-2001-WVLP-FFFFF, Item 5.1).

The liquids infiltration or “application capacity” of each landfill is the amount of liquid that can be expected to flow by gravity from all of the trenches. This quantity has been estimated using the methodology described in “Analysis Procedures for Design of Leachate Recirculation Systems,” (T.B. Maier, June 1998, see Docket No. F-2001-WVLP-FFFFF, Item 4.2). This method involves estimating the moisture content of the waste (typically 15 to 25 percent without liquid application), the hydraulic properties of the waste, the moisture retention capacity (field capacity) of the waste (typically 40 percent), and the depth of liquid in the trench. Using this information, the infiltration rate of liquid into the waste from one 400 foot long trench is calculated; the total application capacity equals the combined infiltration rate of all six trenches. As shown in the May 2000, GeoSyntec Report, the total application capacity of the group of six trenches is calculated to be about 110,000 gallons per day, which is much greater than the average application rate of either 10,960 gallons per day or the 22,000 gallons per day for Maplewood and King George Landfills, respectively. The exact number and length of the trenches will be determined during the implementation of the project but at a minimum will be adequate to provide for the average application rates.

EPA's RCRA MSWLF operating criteria require that MSWLFs be designed and constructed with a leachate collection system that can ensure a hydraulic head (leachate layer) above the liner of 30 centimeters (cm) or less, i.e., approximately 12 inches. The operator must monitor the depth of liquid (or thickness of “head”) and ensure no more than 30 cm of head is on the liner. The impact of the liquid application activities on the thickness of head on the liner systems was evaluated using the Hydrologic Evaluation of Landfill Performance (HELP) model ( see the May 2000, GeoSyntec Report). First, the hydrologic evaluation was performed assuming that no liquid is applied; then the evaluation was performed for the liquid application condition under the assumptions that 4,000,000 and 8,000,000 gallons per year will be recirculated at the Maplewood and King George Landfills, respectively. These calculations show that a head of 30 cm or less is expected on both the Maplewood and the King George liner. The King George Landfill is expected to maintain a lower head than the Maplewood Landfill because the drainage layer material at the King George landfill is approximately 100 times more permeable than the drainage layer material at the Maplewood landfill. This is why the King George Landfill was selected for an application rate of twice the volume of liquids that will be applied to the Maplewood Landfill.

The primary liner system of both landfills is underlain by a secondary liner and leachate collection system. Sumps are located at the low point of each cell in each system and will be monitored for the depth of liquid on a monthly basis. As needed and required, liquid in the sumps is collected and controlled as leachate. Samples are collected to evaluate the characteristics of the liquids. If the test results from the sampled liquid or the monitoring of the leachate level indicate that there is a potential leak in the primary liner system, then the need for a larger pump will be evaluated and the liquid level in the primary system will be further evaluated and monitored to minimize the liquid depth above the primary liner. The liner leakage rate will be evaluated and the leachate injection rate may be reduced, if necessary, to control the rate of flow into the secondary leachate collection system. Waste Management will monitor the depth of liquid on the liners of both landfills throughout the XL project period, and will ensure that less than the 30 cm maximum head is maintained, in accordance with regulations. This rule will not alter Waste Management's obligation to maintain less than 30 cm of head on the liners at the Virginia Project XL Landfills.

It is necessary that the on-site leachate storage structures at both the Virginia Project XL Landfills have enough capacity to store the leachate needed for later application to the test areas in the landfills. Liquid will be collected and stored for application when conditions are relatively dry. The storage capacity of the leachate tanks at the Maplewood Landfill is approximately 500,000 gallons, this represents approximately a two months supply of leachate at a application rate of 4 million gallons per year.

During operation of the bioreactor system, leachate storage structures will also be used to temporarily store leachate at times when it is not or cannot be recirculated. At a minimum, the tanks will need to store the quantity of leachate generated over a period of several days. The May 2000, GeoSyntec Report states that the Maplewood Landfill generated approximately 3 million gallons of leachate in 1999. The 500,000 gallon storage at Maplewood Landfill represents over a two month storage capacity of leachate at a generation rate of 3 million gallons per year. Therefore, the facility has adequate leachate storage capacity for operation of the bioreactor system. As a contingency, when leachate generation exceeds the rate of recirculation in and storage capacity, leachate can be hauled off-site as is currently being done.

In the May 2000, GeoSyntec Report, Waste Management's consultant evaluated the physical stability of the waste at the Virginia Project XL Landfills under bioreactor operating conditions. GeoSyntec Consultants submitted this engineering evaluation to the Virginia Department of Environmental Quality (VADEQ) as a part of their application for a permit modification for the bioreactor testing at the Virginia Project XL Landfills. A static stability analysis conducted for the slopes of the Virginia Project XL Landfills shows a factor of safety (FOS) of greater than the minimum value of 1.5 was maintained even with the addition of the liquid application trenches and a phreatic or subsurface leachate/water table surface in the landfill cell associated with the addition of liquids in the trench. The calculated FOS for the existing conditions and under the leachate recirculation scenarios remained unchanged in both the Virginia Project XL Landfills since the critical failure surface is located outside the areas that will be wetted by liquid addition during the bioreactor testing or the added liquid does not change the location of the critical surface. The GeoSyntec stability evaluation can be found in the rule docket ( see Docket No. F-2001-WVLP-FFFFF, Items 4.5 and 4.6).

EPA and Waste Management expect that the addition of liquids to the landfills will accelerate the production of landfill gases; indeed, one of the benefits of bioreactor landfills is that the time interval during which landfill gas is generated should be compressed, thereby facilitating its collection and potential conversion to a useful energy source. Landfill gas generation will start sooner and end sooner in landfills where liquids are recirculated. EPA's Standards of Performance for Municipal Solid Waste Landfills, 40 CFR part 60, subpart WWW, requires large landfills that meet the emissions threshold to perform landfill gas monitoring and install a collection and control system as specified in the regulation in areas where wastes are over a certain age. Effective November 1999, Waste Management installed, and is operating, an active ( i.e., vacuum induced) landfill gas collection system in Phases 1, 2 and 3 at the Maplewood Landfill. An active gas collection system became operational at the King George Landfill on December 10, 2000.

This XL project will comply with the subpart WWW performance standards for MSWLFs under the Federal Clean Air Act. Waste Management will continue to provide subpart WWW-compliant landfill gas monitoring, collection and control during and following the application of liquids at the landfills. Waste Management's obligations with respect to landfill gas is set forth in a Federally Enforceable State Operating Permit (FESOP). The VADEQ is the regulatory agency which, under the Federal Clean Air Act, has air permitting authority for both landfills. The VADEQ has issued a New Source Review (NSR) permit (9 VAC 5-80-10) for the King George Landfill which contains the enforceable parameters and requirements reflecting the New Source Performance Standards (NSPS)—compliant gas collection, control and monitoring. In addition, on July 31, 2001, VADEQ issued a Title V Operating permit (9 VAC 5-80-50 et. seq. ), for the King George Landfill. Both the Title V permit and the underlying NSR permit issued by VADEQ are considered Federally enforceable. An NSR permit for the Maplewood Landfill was issued on March 29, 2002. A draft Title V permit is currently being revised by VADEQ. This rule is conditional upon the issuance of a FESOP. The FPA stated that the landfill gas monitoring, collection and control include at least the following provisions:

1. Waste Management will enhance the gas collection and control systems at the landfills ( e.g. , using additional extraction wells or trenches or by enhancing the cover over affected areas). This will be done at the discretion of Waste Management, or as directed by VADEQ, if it is determined that there is a potential to exceed the applicable air quality permit requirements or NSPS during evaluation of routine monitoring data or if odor problems or air quality problems occur. The system will be expanded as needed ( e.g. , using additional extraction wells or trenches or by placing additional cover or tarps over affected areas) to ensure compliance with the applicable air quality permit requirements.

2. The performance of the landfill gas extraction systems at the Virginia Project XL Landfills will be documented and assessed by obtaining monitoring data from the gas extraction wells and the landfill surface for parameters such as methane, carbon dioxide, oxygen, non-methane organic compounds (NMOCs) and other constituent concentrations, in accord with 40 CFR part 60, subpart WWW. The gas temperature at the well heads will also be monitored as required by subpart WWW.

3. A baseline round of air monitoring at each landfill will be completed prior to the introduction of liquids, and the monitoring will continue for the duration of the project.

4. Collected landfill gas will be controlled through the use of an active gas control system at both sites.

The site stakeholders, listed in Section III.G. of today's rule (below), recognize that the increased production of landfill gas may result in an increase in the flow rate of NO X emissions from any flares or other gas processing equipment installed as part of the project. Air quality permits for these emissions may need to be amended to allow the implementation of the XL project. In the FPA, Waste Management committed to exploring alternative uses for the collected gas other than flaring and on September 1, 2001, Waste Management signed an agreement with a private energy development company to construct a 9MW power plant fueled by landfill gas at the Maplewood Landfill. Waste Management is currently negotiating a similar agreement for the King George Landfill.

Currently, the Federal regulations outline two methods for complying with liner requirements for municipal solid waste landfills. The first method is a performance standard set out under 40 CFR 258.40(a)(1). This standard allows installation of any liner configuration provided the liner design is approved by the director of an approved State (defined in § 258.2) and the design ensures that certain constituent concentrations are not exceeded in the uppermost aquifer underlying the landfill facility at the point of compliance.

The second method is set out in 40 CFR 258.40(a)(2) and (b). § 258.40(b) specifies a liner design which consists of two components: (1) An upper component comprising a minimum of 30 mil flexible membrane liner (60 mil if High Density Polyethylene (HDPE) is used); and (2) a lower component comprising at least two feet of compacted soil with a hydraulic conductivity no greater than 1×10 − 7 cm/sec.

Both the Maplewood Landfill and the King George County Landfill were constructed to meet or exceed the performance standard set forth in 40 CFR 258.40(a)(1). The liner under each landfill was built with a geomembrane double synthetic liner system, with primary leachate collection and leak detection (secondary collection) layers.

• The King George County liner and leachate collection system consists, from top to bottom, 1.5 feet of protective cover, leachate drainage material, 16 oz./square yard nonwoven geotextile, 60 mil textured HDPE primary geomembrane liner, a geosynthetic clay liner, geocomposite drainage layer, 60 mil textured HDPE secondary geomembrane liner, geosynthetic clay liner, 40 mil textured HDPE tertiary geomembrane liner and 1 foot of geologic buffer material with a permeability (k) of < 1×10 − 5 cm/sec.

• The Maplewood Landfill liner and leachate collection system consists of, from top to bottom, 1.5 feet of primary granular drainage layer, 60 mil HDPE geomembrane, geonet layer, 60 mil HDPE geomembrane, bentonite geocomposite, underlain by 1.5 feet of a clayey soil liner with a permeability (k) of < 1×10 − 5 cm/sec.

The 60 mil HDPE upper liner component of both landfills' liners meets the specified upper membrane liner component under RCRA (40 CFR 258.40(b). However, instead of a lower liner component comprising at least two feet of compacted soil with a hydraulic conductivity no greater than 1×10 − 7 cm/sec, the Virginia Project XL Landfills were built with a second geosynthetic 60 mil HDPE layer. Additionally, beneath the double liner system at the King George County is a third 40 mil HDPE liner, underlain by one foot of soil compacted to a permeability (k) of < 1×10 − 5 cm/sec., and the double liner system at the Maplewood Landfill is underlain by 18 inches of soil compacted to a permeability (k) of < 1×10 − 5 cm/sec. The liner systems for the two landfills are illustrated in Figure 2 of the FPA.

While the Virginia Project XL Landfills do not have a composite liner as specified in the Design Criteria § 258.40(b), the alternative liner systems meet or exceed the performance requirements for municipal solid waste landfills. Indeed, these landfills' double-liner systems provide a high level of protection to the environment against potential impacts caused by leakage of leachate.

The expected superior environmental benefits from the Virginia Landfills XL Project include: (1) Landfill life extension; (2) minimizing the potential for long-term leachate-associated groundwater and offsite surface water concerns; and (3) increasing landfill gas control, minimizing fugitive methane and VOC emissions and minimizing the duration of gas generation.

The life of a landfill, when operated as a bioreactor, should be extended by the biodegradation of the waste. The accelerated biodegradation increases the apparent density and decreases the volume of the in-place waste remaining in the landfill. Reducing the volume of waste translates into either longer landfill life and/or less need for additional landfill space. Thus, a bioreactor landfill will be able to accept more waste over its working lifetime (subject to applicable State regulatory requirements) and less landfill space may be needed to accommodate the same amount of waste.

Research reported in “Active Municipal Waste Landfill Operations: A Biochemical Reactor” (Reinhart, 1995, see Docket No. F-2001-WVLP-FFFFF, Item 4.1), has shown that bioreactor processes tend to reduce the concentration of many pollutants in leachate, including organic acids and other soluble organic pollutants. Bioreactor operations brings pH to near-neutral conditions and generally, metals are much less mobile under these condition. Reinhart found that metals were largely precipitated and immobilized in the waste of bioreactor landfills. Discussions between Waste Management, the VADEQ, and the host communities for the Maplewood Landfill and the King George County Landfills, indicated that groundwater-related issues are of primary concern to the stakeholders, including minimizing the long-term threat to groundwater quality. This project should provide for accelerated biodegradation of the waste in the landfills and, thereby, minimize the potential for the waste to present a long-term threat to groundwater quality. Routine groundwater monitoring is, and will continue to be, performed to verify containment. Cleaner leachate also translates into decreased load on the offsite publicly owned treatment works (POTWs) where the leachate from these landfills is now being treated. As described in Section 1.2 of the FPA, both the Maplewood and King George County Landfills were constructed with double-liner systems, which are highly efficient at preventing leakage of leachate from landfills.

Landfill gas contains roughly 50% methane, a potent greenhouse gas. In terms of climate effects, methane is second in importance only to carbon dioxide as a greenhouse gas. Landfill gas also contains volatile organic compounds (VOC's) which are air pollutants of local concern. While the rate of gas generation will be increased by adding liquids to the landfills, the period of post closure landfill gas generation will be compressed. The existing, active gas collection systems in operation at both landfills are expected to efficiently collect and control landfill gas. The systems will be maintained and monitored in accordance with the terms of 40 CFR part 60, subpart WWW and all applicable permits. In addition, as noted above, Waste Management has signed an agreement with a private energy development company to construct a power plant fueled by landfill gas at the Maplewood Landfill and is negotiating a similar gas/energy recovery agreement for the King George Landfill.

It is also anticipated that the information obtained from this XL project will provide the EPA and the waste disposal industry with data concerning the use of bioreactor techniques at MSWLF sites throughout the United States, in accord with the Agency's April 6, 2000, Request for Information and Data regarding Alternative Liner Performance, Leachate Recirculation, and Bioreactor Landfills (65 FR 18014, April 6, 2000).

Initial public meetings were held on August 1, 2000 (King George County) and August 2, 2000 (Amelia County) to solicit comments from the public on the intent of the sponsors to participate in Project XL. Additional public meetings were also held during the week of September 4, 2000 in King George and Amelia Counties to discuss the draft FPA with the citizens from these localities. Since both landfills have valid State operating permits, the VADEQ intends to amend the permits to allow the construction and operation of the bioreactor systems as an experimental process. Before VADEQ issues a permit amendment, a local public hearing will be held to solicit comments on the draft permit amendments from concerned citizens. The details of the permit amendments for each landfill are outlined in advertisements along with contact information and document viewing locations. The public hearing is also advertised in a local paper. The VADEQ has a standardized mailing list of State agencies to whom a draft permit or notice of permit amendment can be sent to solicit comments. Conditions may be imposed due to additional State requirements or as a result of public comment.

In accord with VADEQ regulatory requirements, Virginia will hold public meetings and hearings on the proposed amendments to the solid waste construction and operating permits for the Virginia Project XL Landfills. If requested, these public hearings will be supplemented with additional stakeholder meetings. A stakeholder mailing list maintained by Waste Management will be updated as necessary to include private citizens and other interested parties. Periodically, progress reports and other relevant information will be distributed. If requested, Waste Management has also agreed to provide site tours and briefings to better educate any interested citizens or stakeholders. Transcripts and video tape recordings of all public meetings and hearings will be maintained at the repositories. A repository for the project will be maintained by VADEQ at 629 East Main Street, Richmond, VA, 23219 c/o Paul Farrell, (804) 698-4214. Additional copies of the repository records will be maintained in the James Hamner Memorial Library, 16351 Dunn Street Amelia, Virginia 23002 and in the L.F. Smoot Lewis Memorial Library, 9533 Kings Highway, King George, Virginia 22485. An Internet Web site for this XL project is also maintained at: http://www.epa.gov/ProjectXL/virginialandfills/index.htm. Throughout project development, EPA will continue to update the website as the project is implemented. The FPA also includes a detailed description of stakeholder involvement with this XL project ( see Docket No. F-2001-WVLP-FFFFF, Item 2.2, or on the Web site).

Waste Management will periodically meet with a representative from each local landfill advisory committee or the entire stakeholder group to discuss issues of concern and to disseminate information. To solicit additional stakeholder involvement, Waste Management may perform its own outreach including contacting nationwide professional and citizen groups that may have an interest in bioreactor technology and will attempt to disseminate information to its members, as well as, attend national workshops or seminars.

The following have been identified as VA Project XL Landfill stakeholders:

EPA did not prepare an economic assessment of the impacts of today's rule. EPA notes, however, that Waste Management volunteered for this pilot project which will affect only two facilities and is expected to result in an overall cost savings by:

• accelerating the rate of decomposition of the waste placed in certain areas of the two Virginia Project XL Landfills, which is expected to extend the life of the landfill;

• improving the quality of leachate generated in those specific areas of the landfills, which is expected to decrease leachate treatment and disposal costs; and

• increasing methane generation and recovery efficiency, which is expected to facilitate the use of the methane for energy generation.

As with all XL projects testing alternative environmental protection strategies, the term of this XL project is limited. Today's rule will be in effect for ten (10) years. In the event that EPA determines that this project should be terminated before the end of the ten year period and that the site-specific rule should be rescinded, the Agency may withdraw this rule through a subsequent rulemaking. This will allow all interested persons and entities the opportunity to comment on the proposed termination and withdrawal of regulatory authority. In the event of an early termination of the project term, EPA or the State will establish an interim compliance period, not to exceed six months, such that Waste Management will be returned to full compliance with the existing requirements of 40 CFR part 258. In accordance with 9 VAC 20-80-480.G, VADEQ expects to utilize an experimental permit to provide for operation of the VA Project XL Landfills as bioreactors. If the XL project proves to be feasible, VADEQ expects to modify the permit for the facility to provide for the ten year XL project term.

The FPA allows any party to the agreement to withdraw from the agreement at any time before the end of the ten year period. It also sets forth several conditions that could trigger an early termination of the project, as well as procedures to follow in the event that EPA, the State or local agency seeks to terminate the project (FPA, section 11).

For example, an early conclusion will be warranted if the project's environmental benefits do not meet the Project XL requirement for the achievement of superior environmental results. In addition, new laws or regulations may become applicable during the project term which might render the project impractical, or might contain regulatory requirements that supersede the superior environmental benefits that are being achieved under this XL project. Or, during the project duration, EPA may decide to change the Federal rule allowing recirculation over alternative liners and the addition of outside bulk liquids for all Subtitle D landfills. In that event, the FPA and site-specific rule for this project will no longer be needed.

Under 5. U.S.C. 553(d), the rulemaking section of the Administrative Procedure Act, EPA is making this rule effective upon publication. Under 5 U.S.C. 553(d)(1), EPA is making this rule immediately effective because the rule relieves a restriction in that it allows the Virginia Project XL Landfills to add liquids to the landfills that are currently not allowed under 40 258.28(a) (1) and (2) and § 258.40(b). In addition, under 5 U.S.C. 553(d)(3), EPA finds good cause exists to make this rule effective immediately because the Virginia Project XL Landfills are the only regulated entity affected by the rule, sought the conditional relief provided in this rule, and have had full notice of the rule. Making the rule immediately effective will allow the Virginia Project XL Landfills to proceed sooner with the bioreactor project.

This site specific rule grants regulatory relief from certain requirements of RCRA that restrict application of liquids in these MSWLFs, because as previously described, both the Maplewood and King George landfills were constructed with alternative liners pursuant to 40 CFR 258.40(a)(1). When the FPA for this project was signed, RCRA regulations, 40 CFR 258.28(a) allowed bulk or noncontainerized liquid waste to be added to a MSWLF only if the following two conditions were met:

Since then, EPA promulgated a site-specific rule for the Yolo County, CA, bioreactor landfill project under Project XL, which amended § 258.28(a). The amendment allows bulk liquid wastes to be added to a MSWLF if “the MSWLF unit is a Project XL MSWLF and meets the applicable requirements of § 258.41” (66 FR 42441-42449, August 13, 2001). Therefore, the regulatory relief needed for the VA Project XL Landfills is a site-specific amendment to 40 CFR 258.41.

Today's rule will allow the owner/operator of the Virginia Project XL Landfills to add non-hazardous bulk or non-containerized liquids, including: leachate, storm water and truck wash water (“liquids”) to Cell 3 of the King George Landfill and Phases 1 and 2 of the Maplewood Landfill, as long as these areas meet the maintenance, operational, monitoring and other requirements set forth in § 258.41(c). The owner/operator of the Maplewood Landfill will add liquids primarily consisting of leachate from the landfill, while the owner/operator of the King George Landfill will add leachate generated at this facility plus other liquids, including non-containerized liquids such as storm water, truck wash water and other non-hazardous liquid waste. Further information on the liquids that will be added to the Maplewood and King George Landfills can be found in the FPA in Section 2.2.2.1 and 2.2.2.2, respectively. Today's rule will add a new subsection to the rules in § 258.41. New § 258.41(c) will specifically apply to the Maplewood Landfill, in Amelia County, Virginia, and the King George Landfill, in King George County, Virginia, and will allow liquids to be applied to these two landfills.

This rule imposes certain minimum monitoring, reporting, and control requirements on Waste Management, which, among other things, will ensure that the project is protective of human health and the environment and facilitate EPA's evaluation of the project. The project monitoring and reporting requirements are listed in the FPA (sections 2.2.1.4, 2.2.1.5, 2.2.2.4, and 2.2.2.5, Table 6 and 6A) and specify that Waste Management provide semi-annual reporting of the monitoring data to stakeholders and regulators in order to facilitate project evaluation.

Existing regulation also requires a leachate collection system as specified in § 258.40(a)(2) to ensure that contaminant migration to the aquifer is controlled. (56 FR 50978-51056, Oct. 9, 1991). This rule will not change the requirement in § 258.28(a)(2) that a leachate collection system (as described in § 258.40(a)(2)) be in place in order for leachate to be recirculated in the landfill unit, and Waste Management will still be required to ensure that leachate collection systems at the landfills maintain the leachate head over the liner at a depth of less than 30 cm.

Today's rule does not provide any regulatory flexibility with respect to monitoring requirements, rather it adds monitoring to that which would be required for these landfills if they continued operating as conventional MSWLFs. In addition to the monitoring required in part 258, for example, the Virginia Project XL Landfills must monitor and report whether surface seeps are occurring and determine whether they are attributable to operation of the liquid application system; perform a monthly analysis of leachate quality in both test and control areas; and at least monthly, monitor the gas temperature at well heads. EPA believes this additional information will provide the necessary indicators of any increased risk to human health or the environment in a timely manner and will enable Waste Management, VADEQ and/or EPA to take whatever steps are necessary, including suspension or termination of the project. to reduce or eliminate any such risk. EPA also believes that this additional information will be valuable in assessing the benefits of bioreactor operation.

Because this rule affects only two facilities, it is not a rule of general applicability and therefore not subject to OMB review under Executive Order 12866. In addition, OMB has agreed that review of site specific rules under Project XL is not necessary.

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 public comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The project sponsor, Waste Management Inc., is the regulated entity for this pilot project. They are not a small business. This rule does not apply to small businesses, small not-for-profit enterprises, nor small governmental jurisdictions. Further, it is a site-specific rule with limited applicability to only two landfills in the nation. After considering the economic impacts of today's final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. It is exempt from OMB review under the Paperwork Reduction Act because it is a site specific rule, directed to fewer than ten persons. 44 U.S.C. 3502(3), (10); 5 CFR 1320.3(c), 1320.4 and 1320.5.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments in the aggregate or to the private sector of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA 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. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposal with significant Federal mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. As used here, “small government” has the same meaning as that contained under 5 U.S.C. 601(5), that is, governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.

As discussed above, this rule will have limited application. It applies only to the Maplewood and King George County Landfills. This rule will result in a cost savings for Waste Management when compared with the costs it would have had to incur if required to adhere to the requirements contained in the current rule. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or Tribal governments, in the aggregate, or the private sector in any one year. Thus, this rule is not subject to the requirements of section 202 and 205 of the UMRA. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant,” as defined in Executive Order 12886; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to potentially effective and feasible alternatives considered by the Agency.

This rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This rule will allow for the addition of bulk or non-containerized liquid amendments over a liner that does not meet the design requirements in 40 CFR. 258.40(b), however, the liner systems meet or exceed the performance requirements for municipal solid waste landfills. Indeed, these landfills' double-liner systems provide a high level of protection to the environment against potential impacts caused by leakage of leachate. Therefore, no additional risk to public health, including children's health, is expected to result from this rule.

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.” The phrase, “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 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 rule will only affect two local governmental entities and a State, and will provide regulatory flexibility for the State and local governmental entities concerned. Thus, Executive Order 13132 does not apply to this rule.

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

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless such practice is inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, material specifications, test methods, sampling procedures, and business practices) developed or adopted by voluntary consensus standard 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 rulemaking however, does not involve any technical standards; therefore EPA did not consider the use of any voluntary consensus standards.

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.

(11) The operator of the landfill shall report to the EPA Regional Administrator and the State Director on the information described in paragraphs (c)(1) through (10) of this section on a semi-annual basis. The first report is due within 6 months after the effective date of this section. These reporting provisions shall remain in effect for the duration of the project term.

(12) Additional monitoring, record keeping and reporting requirements related to landfill gas will be contained in a Federally Enforceable State Operating Permit (“FESOP”) for the VA Project XL Landfills issued pursuant to the Clean Air Act, 42 U.S.C. 7401 et seq. Application of this site-specific rule to the VA Project XL Landfills is conditioned upon the issuance of such a FESOP.

(13) This section applies until July 18, 2012. By July 18, 2012, the VA Project XL Landfills must return to compliance with the regulatory requirements which would have been in effect absent the flexibility provided through this section. If EPA Region 3's Regional Administrator, the Commonwealth of Virginia and Waste Management agree to an amendment of the project term, the parties must enter into an amended or new Final Project Agreement for any such amendment.

(14) The authority provided by this section may be terminated before the end of the 10 year period in the event of noncompliance with the requirements of paragraph (c) of this section, the determination by the EPA Region 3's Regional Administrator that the project has failed to achieve the expected level of environmental performance, or the promulgation of generally applicable requirements that would apply to all landfills that meet or exceed the performance standard set forth in § 258.40(a)(1). In the event of early termination EPA in consultation with the Commonwealth of Virginia will determine an interim compliance period to provide sufficient time for the operator to return the landfills to compliance with the regulatory requirements which would have been in effect absent the authority provided by this section. The interim compliance period shall not exceed six months.

A Notice of intent to Delete for this Site was published in the Federal Register on May 16, 2002 (67 FR 34886). The closing date for comments on the Notice of Intent to Delete was June 17, 2002. No comments were received, therefore EPA has not prepared a Responsiveness Summary.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

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 some cases, the petitioners requested the specifications be tightened to ensure more accurate measurements in the tests in which the dummy is used to measure injury criteria. More significant issues were raised regarding the thoracic peak force criteria, the need for a specified mass moment of inertia (MMI) and resonant frequency of the impactors, and the need for a post-test calibration.

Our review of the petitions also uncovered several minor errors in the drawings package that are resolved here. In addition, issues raised in the petitions for reconsideration of the final rule incorporating the Hybrid III 3-year-old child dummy into 49 CFR part 572 on the acceptable materials for load cells are addressed in this document since the same force and moment measuring load cells or load cells of similar construction are used in both dummies.

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, an updated procedures document for disassembly, assembly and inspection (PADI), and performance parameters including associated calibration procedures.

Petitions for reconsideration were received from the Alliance of Automobile Manufacturers (Alliance), Toyota, Denton (a manufacturer of load cells), and TRW (a manufacturer of air bags). One dummy manufacturer, FTSS also filed a petition which was dated February 28, 2000, the deadline for filing petitions. The petition was apparently never received by the agency. In a letter dated April 17, 2000, FTSS resubmitted its February 28 petition. This document was not placed into the docket until July 20, 2000. Because we cannot determine why FTSS' timely petition was not placed in the docket until well after the date for filing petitions had passed, this document addresses the concerns raised in the FTSS petition.

Significant issues were raised regarding the thoracic peak force criteria, the pendulum MMI and free air resonance frequency of the impactors, and the post-test calibration requirements. Additionally, petitioners raised issues related to the specifications for dummy clothing, the thoracic hysteresis corridor, the corridor for the knee impactor, the torso flexion test, and the instrumentation for measuring neck tension and extension. Finally, some petitioners pointed out apparent errors in the drawing package.

The final rule provided a requirement for peak thoracic force in the compression transition zone (defined as sternum displacement relative to the spine between 12.5 mm and 38 mm) not to exceed 5% of the value of the peak force (1150-1380 N) measured in the specified maximum displacement zone. The Alliance and TRW both argued that this criterion was not proposed in the NPRM. Additionally, they argued that most of the dummy tests used to support the rulemaking measured peak forces in the transition zone that exceeded the new criterion. The Alliance stated that the new criterion does not improve the fit of the dummy response into the biomechanical corridor. Instead, it believed a peak force that did not exceed 1,560 N in the transitional zone between 12.5 mm and 38 mm of sternum displacement would better represent the demonstrated dummy responses. After discounting the outliers and dummy tests based on earlier versions of the dummy, the Alliance amended its position on the acceptable level of peak force and urged the agency to adopt a peak force of 1500 N. With this level, it determined that a much greater proportion of the data could stay within the biomechanical corridors.

While the Alliance and TRW are correct that a peak force specification was not explicitly proposed in the NPRM for the H-III6C, the issue of peak force specification in the transition zone was raised by TRC in its comments on the NPRM for the H-III6C dummy in general terms and in considerably more detail in its response to the NPRM for the 5th percentile adult female dummy (H-III5F), which did specify peak force in the transition zone. Peak acceleration response requirements for the dummy's thorax is a function of the impact force applied to the sternum as measured by the accelerometer mounted on the impactor. If the impactor force has a wide variation, the level of thoracic response variation would be expected to increase proportionally. The force levels within the maximum deflection zone, as specified in the final rule, allow thorax acceleration level variations of approximately ± 1 g, based on the mean weight of the upper torso of 26.5 lb. The specification in the final rule that the maximum force in the transition zone not exceed the force measured in the specified deflection corridor by more than 5% allows a maximum force in the transition zone of 1450 N. A thorax with this type of response could be responsible for adding one more g to thorax acceleration measurements. The Alliance's original request to increase the maximum allowable force in the transition zone to 1560 N would likely cause the dummy's upper thoracic response to increase by still another g. However, the revised suggestion that the peak force be limited to 1500 N would reduce the latter increase to approximately 0.5 g. Thus, we agree with the Alliance that the additional 50 N may generate a slightly higher, but inconsequential, g level thorax response. While the small increase is not particularly desirable, it is a tolerable change with some positive safety aspects. Users who employ test dummies with elevated peak forces in compliance tests will run a greater risk of exceeding the acceleration tolerance levels specified for the thorax in those tests. We also note that the biomechanical impact response corridors for the human thorax allow a localized peak force to rise to 1500 N just before the sternum compression reaches the minimum required value of 38 mm. Accordingly, a limited increase in force levels is justified on a biomechanical response basis. For these reasons, we have decided to amend the regulatory text to allow a maximum peak force in the compression transition zone of 1500 N.

In its comments on the NPRM, TRC requested that the agency specify a generic impactor for use in the calibration tests. A generic impactor definition would allow users to construct various size impactors using the building block concept. This approach is consistent with the intent, expressed first in the NPRM and then in the final rule, that sensors be defined generically so as to avoid being unnecessarily design-restrictive. TRC stated, and we agreed, that the impactor should not be defined by a specific design, but rather by relevant engineering parameters. The relevant parameters are mass, stiffness, MMI, CG location, and minimum free air resonance frequency. The Alliance stated in its petition that the specifications for free air resonance frequency and MMI were not proposed in the NPRM. It did not challenge any of the other parameters that serve as the basis for a generic impactor. It also claimed that we had failed to provide data or a clear explanation demonstrating that these parameters were necessary. The Alliance further noted that when its members reviewed their own data they determined the parameters were irrelevant. It provided summaries of its members' data to support its position. The Alliance concluded that the two parameters (free air resonance and MMI) should be deleted until substantial data to justify their need had been generated. TRW stated that the final rule failed to specify a procedure for measuring free air resonance.

As noted above, parameters for minimum free air resonance frequency and MMI were specified in the final rule because we believed they were necessary parameters for defining a generic impactor. The NPRM had merely specified that the impactor be perfectly cylindrical in shape and of a certain diameter. This specification approach had been used in most SAE user's manuals. However, in practice, the probes are often not perfectly cylindrical and may be made up of multiple pieces, indicating that in the real world both SAE and existing agency specifications are insufficient for a generic impactor definition. We did not propose parameters for minimum free air resonance frequency and MMI in the NPRM because this generic impactor definition was developed partly in recognition of comments provided by TRC that the impactor specified in the NPRM was inconsistent with the probes regularly used by test laboratories. While we believe our explanation in the final rule as to why the parameters were necessary was sufficient, we are happy to further explain our rationale here. The definition uses three principles as guides:

• Because the overall shape and materials of the impactor may differ among users, its mass, size, MMI, natural resonance, and the shape of the impacting face are the only reliable indicators to assure that an impactor will be sufficiently rigid, capable of repeatable and non-distorted impact measurements;

• The minimum resonance requirement is needed to assure that a multiple-piece impactor does not produce separate interactions between its constituent parts that could distort the responses produced by the dummy; and

• The mounting structure for the accelerometer must be sufficiently rigid and not affect the pendulum-mounted accelerometer output (this requirement is also in SAE recommended practice J211).

We have examined the pendulum response data provided by the Alliance. Those data indicate that the pendulum has two resonant frequencies: One at 430 Hz and one at 6 kHz. The 430 Hz response is the result of beam bending(first mode) about the CG of the impactor, and the 6kHz response is the natural resonance of the impactor along its longitudinal axis (second mode). During beam bending, the ends of the beam experience maximum lateral translation with respect to the beam's undistorted longitudinal axis. Typically, longitudinally oriented accelerometers mounted at the end of the beam have less than three percent cross axis sensitivity. Accordingly, the effects on the signal of a longitudinally oriented accelerometer during the dummy impact would be nearly imperceptible. In contrast, resonance along the axis of the impactor is of primary interest for the thorax and knee tests, because vibrational characteristics of the impactor in the longitudinal direction could greatly affect the measured impact response. The 6 kHz response found in the data submitted by the Alliance demonstrates that our specified parameter for free air resonance is both practicable and relevant. Accordingly, we have decided to amend the regulatory text by specifying that the minimum free air resonance requirements for the thoracic and knee impactors be measured in line with the longitudinal axis of the impactor.

The data provided by the Alliance supporting their position that the MMI should not be specified at this time actually demonstrates the need for such a requirement. The data show a very wide spread of MMI values among various impactors. The moment of inertia of DaimlerChrysler's thoracic impactor is about six times lower than those of TRW, TRC, GM, and FTSS. Likewise, the moment of inertia of GM's knee impactor is approximately eight times that of FTSS. Other than the DaimlerChrysler thoracic impactor and the FTSS knee impactor, all the impactors in the data set were well above the minimum moment of inertia values specified in the final rule. Upon our request, DaimlerChrysler lent the agency the thoracic impactor for performance evaluation. We conducted an assessment of the probe at our Vehicle Research and Testing Center (VRTC) and found that the 164 kg cm 2 MMI presented in the Alliance petition was marginal in impact response. During its free flight, the probe had difficulty maintaining a stable trajectory and barely met the kinematic alignment specifications at impact with the dummy. While this may be largely a result of the probe's low moment of inertia, it is possible that an optimized probe's guidance and suspension system could resolve the problem. Thus, we concluded that a minimum moment of inertia of 160 kg cm 2 is barely sufficient as long as the probe's guidance and suspension systems can assure a stable free flight and impact alignment specifications at contact with the dummy. Accordingly, the regulatory text has been changed to specify a minimum MMI of 160 kg cm 2 .

As for TRW's request that the agency specify a procedure for measuring free air resonance, we have placed a test procedure in the Docket No. 6714-14 and in the PADI document that explains how NHTSA conducts impact tests to determine the resonance of the impactor. Other methods for making such a determination, both analytical and experimental, may be equally suitable for this purpose. Accordingly, we are not specifying a particular procedure in the regulatory text.

Although not addressed in its petition for reconsideration of the final rule adopting the H-III6C, the Alliance argued in the petitions for reconsideration of the final rules on the CRABI 12-month-old test dummy, the Hybrid III three-year-old child dummy and the H-III5F dummy that the provisions for concentricity and symmetry about the longitudinal axis are unrealistic since the pendulum is often fitted with velocity vanes or other hardware, causing asymmetry. The Alliance recommended revision of the probe specification to read, “The primary test probe, less any additional hardware, for [body region] impacts shall be of rigid metallic construction.” FTSS supported the Alliance petitions, stating that the addition of velocity vanes, cable attachment points, or other hardware will result in asymmetry and cause the center of gravity (CG) to be slightly offset from the geometrical center of the probe. FTSS recommended a limitation on the CG offset from the longitudinal axis.

NHTSA agrees with the Alliance and FTSS that the test probe specification should include provisions for mounting velocity vanes and suspension hardware if a cable system is used for impacts. However, the agency does not agree with FTSS that the possible CG offset from the longitudinal axis is needed and 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.

Accordingly, the agency is revising § 572.127 (a) and (b) to allow asymmetrical attachments needed for probe suspension and guidance as well as velocity vanes.

The NPRM proposed that conformance of the dummy's structural properties would be checked before and after any compliance testing. When we published the NPRM for the Hybrid III 5th percentile adult small female dummy on September 3, 1998 (63 FR 46981, Docket No. NHTSA-98-4283) we decided to specify that the dummy conform to this part in every respect before its use in any test, but not after. We stated our intention to make the same change for the other dummies. The NPRMs for the Hybrid III 3-year-old child test dummy (64 FR 4385, January 28, 1999, Docket No. NHTSA-99-5032) and the 12-month-old infant dummy (CRABI) (64 FR 10965, March 8, 1999, Docket No. NHTSA-99-5156) proposed the same specification as the one proposed for the small adult female dummy. A full explanation of the agency's rationale can be found in the NPRM for the small adult female dummy. The agency rationale for the change in when to check for structural conformance is as applicable for the H-III6C as it is for the other dummies. Accordingly, in the Final Rule, section 572.121(c) was changed to adopt the language used in the NPRMs for the other pending dummy rulemakings.

All commenters on the NPRM for the H-III6C dummy, as well as all petitioners on the final rule, commented on this issue when it was first proposed as part of the NPRM for the 5th percentile adult female dummy. The comment period for that NPRM closed over a month before the final rule was issued on the H-III6C dummy and those comments were considered in determining whether to eliminate the post-test calibration requirements for the H-III6C dummy. The commenters' concerns with the proposed regulatory text were addressed in the final rule for the 5th percentile adult female dummy. No new issues or concerns have been raised in the context of the petitions for reconsideration of the final rule on the H-III6C dummy other than an allegation that the provision was outside of the scope of the NPRM. However, since the comments on the new language were received and considered before the final rule was issued, we do not believe that commenters were denied an opportunity to comment on the issue.

The Alliance noted that the internal hysteresis corridor of the rib cage was specified in the NPRM at “not less than 69 percent but not more than 85 percent.” As pointed out by the Alliance, the final rule adopted a slightly broader corridor of not less than 65 percent and not more than 85 percent. Assuming the change was a typographical error, the Alliance requested the agency revise the specification to the narrower corridor proposed in the NPRM. The petitioner also asked for a justification for the broader corridor if the change was intentional.

The broader corridor is not the result of a typographical error. Instead, our review of the test data that had been used to establish the corridor specified in the NPRM led us to believe that the hysteresis corridor could be broadened slightly without degrading the dummy response. The change in specifications was intended to make it easier for dummy users to comply with the calibration specifications for the dummy. While we have no objection to narrowing the corridor to the parameters specified in the NPRM, we do not see a need to do so. Companies not represented by the Alliance will also need to comply with the calibration requirements of part 572. These companies may wish to take advantage of the broader corridor. Accordingly, no change is being made to the corridor specified in the final rule.

The Alliance noted that the upper force limit of the knee impact test contains a conversion error and should be 3.0 kN (674 lbf) rather than 3.0 kN (625 lbf). The Alliance is correct. The regulatory test has been changed to specify the proper force in pounds-force.

NHTSA did not specify using a rotary potentiometer to measure head rotation for head/neck calibration testing because there are number of methods to measure rotation, all of which are acceptable. The Alliance petitioned the agency to specify a channel frequency class (CFC) of 60 that would apply if a rotary potentiometer is used to measure head rotation.

SAE J211, recommended practice for impact test instrumentation, does not designate a CFC for this application. However, the SAE user's manual for the H-III6 does specify a CFC 60 and NHTSA used a CFC 60 to filter the head rotation signal measured by potentiometers. Thus, it appears that both industry and NHTSA have reached a consensus that a channel frequency class of 60 is appropriate if a rotary potentiometer is used to generate data for this purpose. It should also be noted that our review of the raw data found no high frequency signals which would require a channel frequency class higher than 60. Accordingly, we believe it is appropriate to specify a CFC 60 filter if a potentiometer is used to measure head rotation. We reiterate our position that head rotation may be measured using methods other than a potentiometer.

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. 1 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-6C dummy, the agency believes that the similarities of design and test methods between the HIII-3C and HIII-6C dummies would lead to the same temperature sensitivity conclusions for the HIII-6C 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-6C 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.

The final rule specifies that the dummy be clothed in “a light-weight cotton stretch, short-sleeve shirt and above-the-knee pants.” The Alliance maintained in its petition that this does not describe the clothing currently used by the automotive industry. Accordingly, it petitioned the agency to require that the dummy be clothed in “a thermal knit, waffle-weave polyester and cotton underwear or equivalent, a size 5 long-sleeved shirt having a mass not exceeding 0.090 kg, and a size 4 pair of long pants having a mass not more than 0.090 kg, and cut off just far enough above the knee to allow the knee target to be visible.”

We do not believe we need to specify the weave or type of fabric of the dummy clothing, although we have no objection to designating sizes. We note, however, that size can vary based on clothing manufacturer and due to repeated washings. Generally, we do not believe there would be a problem with some amount of variation. We do believe it is appropriate, however, to specify a particular neck opening since shirts come with various neck styles (e.g., v-necked, round-necked) and because the different neck openings could have an effect on calibration. Accordingly, we are adding a requirement that the shirt have a neck opening that is large enough to fit over the dummy's head, but small enough to prevent contact between shoulder belts and the dummy's torso skin.

The following changes are being made to the figures included as part of 49 CFR part 572, Subpart N to correct inaccuracies or ambiguities in those figures.

• Figure N2: (1) Relocate the 26.1 mm reference to the centerline of the posterior attachment bolt to reflect dimensional proportionality; (2) change reference from “Neck Flexion Pendulum 46 CFR 572.33 FIG 22” to “Neck Flexion Pendulum 49 CFR 572.33 FIG 22”; and (3) add part number for bolt “#9001265 Screw, SHCS #10-24 x 7/16”.

• Figure N3: (1) relocate the 26.1 mm reference to the centerline of the posterior attachment bolt to reflect dimensional proportionality; and (2) add part number for bolt “#9001265 Screw, SHCS #10-24 x 7/16”.

• Figure N5: change bracket dimensions from “89.9 mm (3.54 in) x 161.3 mm (6.35 in) x 31.8 mm (1.251 in)” to “90.4 mm (3.56 in) x 175.5 mm (6.91 in) x 31.8 mm (1.25 in)”.

• Figure N6: (1) remove note SA572-S4; and (2) change the weight tolerance on the knee probe from “0.82 ± 0.01 kg (1.80 ± .02 lb)” to “0.82 ± 0.02 kg (1.80 ± .05 lb)”.

In its petition for reconsideration, Denton noted that drawings SA572-S12, SA572-S13-L&R, and SA572-S26, 2 which provide a generic description of the load cells used for the H-III6 dummy, contain specification problems. Denton maintains that the specifications provided in those drawings will render many acceptable load cells obsolete. The Alliance has supported Denton's petition to change those drawings.

The changes suggested by Denton reflect either errors in the drawing package or changes that are so nominal as to have no detrimental effects on the dummy's impact response. Accordingly, the drawings have been changed, as reflected in Table 1.

In addition to the concerns raised by Denton, several minor inconsistencies and call-out errors were noted either by petitioners or by agency staff in the review process. Accordingly, the changes noted in Table 1 have been made to the drawing package. We are also issuing a new drawing series 127-DRL, which will summarize all of changes made to the drawing package for this dummy. We are providing this new drawing series to provide dummy users with a clear picture of corrections to the drawings. No changes have been made to the dummy. The first drawing is 127-DRL-1. Subsequent drawing changes will be summarized in a drawing bearing the number 127-DRL in dated sequence ( e.g., 127-DRL-2). This drawing series will be maintained and updated as long as 49 CFR part 572, subpart N remains in effect.

The drawings and specifications package and the PADI document referred to in this final rule are available for viewing and copying at the Department's public docket area, located at Plaza 401, 400 Seventh St., SW., Washington, DC. Additionally, these documents may be downloaded from the docket website, DMS.DOT.GOV. After accessing the website, click under the “Search” heading, and then under the “search form” to conduct a web search for the documents. When filling out the search form, enter NHTSA as the appropriate agency. Select “rulemaking” as the appropriate category, and “Crashworthiness Drawings and Equipment” as the appropriate subcategory. Enter the name of the test dummy under the “subject” category and then conduct your search by clicking on the “search” heading. This will retrieve the entire PADI and drawings and specifications package for the H-III6C. The PADI and each drawing may be individually retrieved once you have accessed that docket. The drawings and specifications package and the PADI document are also available from Reprographic Technologies, 9107 Gaither Rd., Gaithersburg, MD 20877, (301)419-5070.

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.

We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rule is not considered a significant regulatory action under section 3(f) of the Executive Order 12866. Consequently, it was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

This document amends 49 CFR part 572, subpart N. This rule indirectly imposes requirements on only those businesses that choose to manufacture or test with the dummy, in that the agency will only use dummies for compliance testing that meet all of the criteria specified in this rule. It may indirectly affect vehicle and child seat manufacturers if it is incorporated by reference into the advanced air bag rulemaking or a future Child Seating Systems (FMVSS No. 213) rulemaking.

The total cost of an uninstrumented H-III6C dummy is approximately $30,000. Instrumentation will add approximately $25,000 to $41,000 to the cost, depending on the number of data channels the user chooses to collect. The amendments made in this document will not affect the cost of the dummy.

Because the economic impacts of this proposal are so minimal, no further regulatory evaluation is necessary.

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.

We have 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. We have determined that this rule does not have sufficient federalism implications to warrant consultation and the preparation of a Federalism Assessment. The amendments made in this document will not affect the cost of the dummy.

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

This rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866. It does indirectly involve decisions based on health risks that disproportionately affect children, namely, the risk of deploying air bags to children. However, this rulemaking serves to help vehicle and air bag manufacturers to take steps to reduce that risk.

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this rule will have any retroactive effect. This rule does not have any retroactive effect. A petition for reconsideration or other administrative proceeding will not be a prerequisite to an action seeking judicial review of this rule. This rule does not preempt the states from adopting laws or regulations on the same subject, except that it does preempt a state regulation that is in actual conflict with the federal regulation or makes compliance with the Federal regulation impossible or interferes with the implementation of the Federal statute.

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). However, 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 rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and certify that this proposal will not have a significant economic impact on a substantial number of small entities. The amendments made in this document will not affect the cost of the dummy. The rule does not impose or rescind any requirements for anyone. The Regulatory Flexibility Act does not, therefore, require a regulatory flexibility analysis.

We have analyzed this amendment 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.

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 OMB control number. This rule does not propose any new information collection requirements.

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 us to use voluntary consensus standards in its 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 H-III6C 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 J211-1995, “Instrumentation for Impact Tests—Parts 1 and 2”, dated March, 1995; and

• SAE J1733 Information Report, titled “Sign Convention for Vehicle Crash Testing”, dated December 1994.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 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 in any one year (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 us 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. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.

This rule does not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This rule does not meet the definition of a Federal mandate because it does not impose requirements on anyone. Further, 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. The amendments made in this document will not affect the cost of the dummy. 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 Regional Administrator closed the commercial fishery in the area from U.S.-Canada Border to Cape Falcon, OR, effective Friday, June 7, 2002, at 2359 hours l.t. Information provided on June 5 estimated that the quota of 50,000 chinook salmon would be reached by June 7. Automatic season closures based on quotas are authorized by regulations at 50 CFR 660.409(a)(1).

In the 2002 annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002), NMFS announced that the commercial fishery for all salmon except coho in the area from U.S.-Canada Border to Cape Falcon, OR would open May 1 and run through the earlier of June 30 or a 50,000-chinook quota.

On June 5, 2002, the Regional Administrator consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife by conference call. Information related to catch to date, the chinook catch rate, and effort data indicated that it was likely that the quota would be reached by June 7. As a result, the States of Oregon and Washington recommended, and the Regional Administrator concurred, that the commercial fishery in the area from U.S.-Canada Border to Cape Falcon, OR close effective at midnight on Friday, June 7, 2002. All other restrictions that apply to this fishery remain in effect as announced in the 2002 annual management measures and subsequent inseason actions.

The Regional Administrator determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason action recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishers of the above described action was given prior to the effective date by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

This action does not apply to other fisheries that may be operating in other areas.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B), or delaying the effectiveness of this rule for 30 days under 5 U.S.C. 553(d)(3), because such notification and delay would be impracticable and contrary to the public interest. As previously noted, actual notice of this action was provided to fishermen through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002) and the West Coast Salmon Plan. Prior notice and opportunity for public comment is impracticable because NMFS and the state agencies have insufficient time to allow for prior notice and the opportunity for public comment between the time the fishery catch and effort data are collected to determine the extent of the fisheries, and the time the fishery closure must be implemented to avoid exceeding the quota. Moreover, such prior notice and the opportunity for public comment is contrary to the public interest because not closing the fishery upon attainment of the quota would allow the quota to be exceeded, resulting in fewer spawning fish and reduced yield of the stocks. The 30-day delay in effectiveness required under U.S.C. 553(d)(3) is also hereby waived due to the immediate need to stop a fishery upon attainment of a quota.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.

The Regional Administrator modified the season for the commercial fishery in the area from the U.S.-Canada Border to Cape Falcon, OR, to open on July 1 and close at midnight, July 8, 2002, with a vessel trip limit of 250 chinook salmon for the 8-day open period. Information provided to NMFS on June 26 regarding the available catch and effort data indicated that these management measures should be implemented to fully access the chinook and coho quotas. Modification of fishing seasons are authorized by regulations at 50 CFR 660.409(b)(1)(i).

In the 2002 annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002), NMFS announced that the commercial fishery for all salmon except coho in the area from the U.S.-Canada Border to Cape Falcon, OR would open July 1 and run through the earlier of September 8 or a 32,500-chinook quota, except for a selective fishery for marked coho scheduled at the end of the season with a 5000 marked coho quota.

On June 26, 2002, the Regional Administrator consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife (ODFW) by conference call. Information related to catch to date, the chinook catch rate, and effort data indicated that it was likely that the chinook quota would be reached prematurely, potentially foreclosing opportunity of fishers to conduct the selective fishery for marked coho later in the season. There was also concern about placing an oversupply of chinook salmon on the market in a short time period, thus reducing the price of salmon and economic value of the fishery. As a result, the states of WA and OR recommended, and the Regional Administrator concurred, that the commercial fishery in the area from the U.S.-Canada Border to Cape Falcon, OR would open on July 1 and close at midnight, July 8, 2002, with the provision that no vessel may possess, land, or deliver more than 250 chinook for the entire 8 day open period. All other restrictions that apply to this fishery remain in effect as announced in the 2002 annual management measures. The State of Oregon added a landing restriction for this fishery in their regulations requiring that fishers fishing within this area, and intending to land salmon south of Cape Falcon, notify the ODFW before they leave the area at the following phone number (541) 867-0300, Ext. 252.

The Regional Administrator determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason action recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishers of the above described action was given prior to the effective date by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

This action does not apply to other fisheries that may be operating in other areas.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B), because such notification and delay would be impracticable and contrary to the public interest. As previously noted, actual notice of this action was provided to fishermen through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002) and the West Coast Salmon Plan. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies have insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data are collected to determine the extent of the fisheries and the time and trip limits to which the fishery must be adjusted to reduce the tempo of the fishery. Such prior notice and the opportunity for public comment is contrary to the public interest because it does not allow commercial fishermen appropriately controlled access to the available fish at the time they are available.

Moreover, the AA finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3). A delay in effectiveness of this action would not allow commercial fishermen appropriately controlled access to the available fish at the time they are available.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 TAC of Pacific ocean perch for the Central Aleutian District was established as 2,831 metric tons (mt) by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 TAC for Pacific ocean perch in the Central Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,531 mt and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Aleutian District of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid exceeding the 2002 TAC of Pacific ocean perch for the Central Aleutian District of the BSAI constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and 50 CFR 679.20(b)(3)(iii)(A). These procedures are unnecessary and contrary to the public interest because the need to implement these measures in a timely fashion to avoid exceeding the 2002 TAC of Pacific ocean perch for the Central Aleutian District of the BSAI constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d)(3), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and CFR part 679.

The 2002 TAC allocation of “other rockfish” for the Western Regulatory Area was established as 90 metric tons by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002 and 67 FR 34860, May 6, 2002).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the allocation of the “other rockfish” TAC in the Western Regulatory Area of the GOA has been achieved. Therefore, NMFS is requiring that further catches of “other rockfish” in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to overharvesting the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA, also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.