This rule is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule increases the minimum maturity requirements for fresh Florida grapefruit. This change increases the current minimum maturity from a 7.5 percent soluble solids (sugars) and a 7.0 to 1 solids to acid ratio with a sliding scale minimum ratio of 6.0 to 1, to an 8.0 percent soluble solids (sugars) and a 7.5 to 1 solids to acid ratio with a sliding scale minimum ratio of 7.2 to 1. This change results in a sweeter grapefruit taste and should increase consumer demand for fresh grapefruit. This action was recommended by the Committee at its meeting on May 22, 2002, during which thirteen Committee members voted in favor of this change, and three voted against.

Section 905.52 of the order provides the authority for the establishment of grade and size requirements for Florida citrus. One element of grade is maturity. Section 905.306 of the order specifies, in part, the minimum grade requirements for grapefruit. The current grade requirement for Florida grapefruit is a U.S. No. 1. The specifics of this grade requirement are listed under the U.S. Standards for Grades of Florida Grapefruit (7 CFR 2851.750-2851.784).

The U.S. Standards for Grades of Florida Grapefruit (Standards) specify minimum and/or maximum allowances for discoloration, firmness, color, texture, form/shape, varietal characteristics, and maturity. The Standards define maturity by referencing the 1995 Florida Department of Citrus (FDOC) Florida Citrus Code, Chapter 601 and the FDOC Official Rules Affecting the Florida Citrus Industry, Part 1, Chapter 20-13. The 1995 Florida Citrus Code specifies a minimum maturity of a 7.5 percent soluble solids (sugars) and a 7.0 to 1 ratio of solids to acid. The FDOC also employs a Citrus Fruit Maturity Chart as a sliding scale to determine equivalent soluble solids and ratio maturity combinations. The sliding scale allows for a range of soluble solids and ratio combinations that are comparable to the required minimum maturity level rather than just a fixed minimum requirement. With the sliding scale, a higher level of soluble solids (sugars) allows for a lower solids to acid ratio. In other words, grapefruit with higher soluble solids can have a lower solids to acid ratio and meet the minimum maturity requirements.

This rule increases the minimum maturity requirements for fresh Florida grapefruit. At its meeting on May 22, 2002, the Committee recommended increasing the current minimum maturity level for fresh grapefruit from a 7.5 percent soluble solids (sugars) and a 7.0 to 1 solids to acid ratio with a sliding scale minimum ratio of 6.0 to 1 as specified in the Standards, to an 8.0 percent soluble solids (sugars) and a 7.5 to 1 solids to acid ratio with a sliding scale minimum of 7.2 to 1.

The Committee had formed a subcommittee to examine the maturity issue, the Subcommittee on Grapefruit Maturity Standards (subcommittee). The subcommittee determined that the minimum maturity requirements for fresh grapefruit should be increased and forwarded this idea to the full Committee at the May meeting. The subcommittee's presentation to the full Committee focused on declining fresh grapefruit sales, which it attributed to consumer dissatisfaction with taste. Furthermore, it discussed the potential to increase consumer demand through increasing the sweetness of grapefruit, particularly early in the season.

The subcommittee found that consumers would be more likely to make repeat purchases if their initial taste experience of early season grapefruit were positive. By increasing the minimum maturity requirements, the industry could meet consumer demand for a sweeter tasting fruit. The subcommittee based its proposal to increase the minimum maturity standard on recent market research studies and cited industry requests and support for a higher maturity standard.

The research studies referenced by the subcommittee were undertaken by the FDOC, or at their request, and were designed to determine those factors causing sales of fresh grapefruit to decline and those that cause demand to increase. Much of the decline in sales was attributed to consumer dissatisfaction with bitter tasting grapefruit early in the harvest season which, in turn, resulted in consumer reluctance to make repeat purchases. The studies indicate consumer demand for grapefruit would increase if their initial taste experience were positive. In other words, repeat purchases are linked to consumer satisfaction with taste (Florida Department of Citrus, Consumer Research, February 20, 2002, conducted by a market research group; Grapefruit Sensory Evaluation Study, February 19, 1997, conducted by the FDOC; FDOC Grapefruit Strategy Working Session, February 20, 2002, conducted by a market research group).

The subcommittee stated there was also substantial industry support for an increase in the minimum maturity requirements, and referenced memos received by the Committee in support of such an increase. The memos received were from several industry groups representing nearly 80 percent of fresh grapefruit shipments. The memos specified the need to increase sales and identified an increased maturity standard as a means to improve consumer demand, particularly through repeat purchases.

The Committee, in its deliberations following the subcommittee's presentation, discussed the state of the fresh grapefruit market. Discussion centered around declining market demand and the need to improve consumer purchasing patterns, particularly for early season and repeat purchases. The Committee drew from information provided by the subcommittee, market studies, and from Committee members, and determined that providing the consumer with a sweeter, more mature grapefruit will likely result in improved fresh fruit sales.

The purpose of this action is to help stabilize the market for Florida grapefruit and improve producer returns by strengthening demand and increasing the number of repeat purchases of grapefruit. Market research indicates this rule provides the consumer with a grapefruit that is closer to consumer expectations in terms of sweetness, thereby resulting in an increased demand for fresh grapefruit.

According to the FDOC Florida Citrus Outlook 2001-2002 report, domestic consumption of fresh Florida grapefruit has been declining in recent years, dropping from 7-pounds per capita consumption in the early 1980's to 6-pounds per capita consumption in the late 1990's. The Economic Research Service, USDA, listed per capita domestic consumption of grapefruit as 5.19 pounds in 2000.

This reduced consumption is reflected in the shipping data for fresh grapefruit. The Committee's 2000-2001 Annual Statistical Report indicates shipments of Florida fresh grapefruit have declined 28 percent over the past five seasons, dropping from 22.1 million boxes (1 3/5 bushels) in 1996-1997, to 15.9 million boxes in 2000-2001. For the same period, FDOC reports show that domestic consumption of fresh grapefruit has declined nearly 38 percent, from 18.6 million cartons ( 4/5 bushel) during the 1996-1997 season to 11.6 million cartons for the 2000-2001 season.

The FDOC also notes that Florida's share of the U.S. fresh grapefruit market has declined from 71.7 percent in 1990-1991, to 44.0 percent in 2001-02. Much of this lost market share has gone to Texas. Texas shipped an estimated 273 million pounds of fresh grapefruit to the domestic and Canadian markets in 2000-2001 compared to 184.3 million pounds in 1995-96, and accounted for over 31 percent of those market shipments in 2000-2001, up from 17 percent in 1995-96. Texas had a 32 percent increase in shipments to those markets over the 1995-96 season. During the same period, to the same markets, Florida fresh grapefruit shipments decreased by 32 percent.

The Committee raised the question as to the minimum maturity requirements for fresh Texas grapefruit. One reason for the increasing demand for Texas grapefruit may be its sweeter taste. Texas currently has a higher minimum maturity requirement than Florida. Minimum maturity requirements for fresh Texas grapefruit include a 9.0 percent soluble solids (sugars) and a 7.2 to 1 solids to acid ratio.

The Committee recognized that Florida grapefruit production has been declining along with demand. However, the lower market supply has not stabilized market prices. Florida accounts for nearly 80 percent of total domestic grapefruit production. Production for the 2000-2001 season was approximately 46 million boxes. This compares to production of approximately 47.1 million boxes for the 1998-99 season, and is substantially less than the 55.8 million boxes produced in 1996-97. While this represents nearly an 18 percent decrease in Florida grapefruit production, lower supply did not result in higher producer returns as demand for fresh Florida grapefruit also declined during this period.

The weakening demand for Florida fresh grapefruit has contributed to declining on-tree prices and has led to economic abandonment of fruit. According to the National Agricultural Statistical Service, on-tree prices for fresh Florida grapefruit, fell from an average of $6.52 per box in 1999-2000 to an average of $4.80 per box in 2000-2001. Due to low economic returns the past several years, some producers have resorted to leaving portions of their crops unharvested. Economic abandonment has impacted the Florida grapefruit industry for four of the past six seasons, reaching an apex of 12 percent of total production in the 1997-1998 season. Abandoned fruit accounted for 4 percent of production in the 2000-2001 and the 2001-02 seasons.

The Committee believes the over shipment of smaller sized red seedless grapefruit contributes to poor returns and lower prices. To address this situation the Committee has recommended weekly percentage of size regulation under § 905.153 for the last five seasons. This regulation limits the volume of small sizes entering the market during the regulated period. Under weekly percentage of size regulation, f.o.b. prices and on-tree returns increased and movement stabilized as compared to years with no percentage of size regulation. Weekly percentage of size regulation has helped improved the situation, but it has not solved all the problems. Consequently, the Committee believes it is important to also address the demand side of the market.

The Committee's recommendation to increase the minimum maturity requirements recognizes that due to loss of market demand, decreasing production and limiting shipments alone cannot adequately stabilize weakening prices. In its efforts to achieve market stabilization, the Committee has turned its focus to increasing consumer demand. The Committee's recommendation to increase the minimum maturity requirements seeks to increase demand by meeting consumer preferences with a sweeter tasting grapefruit.

The Committee's recommendation is supported by several recent market studies. FDOC research on consumer purchasing attitudes towards grapefruit demonstrates the need for increasing sweetness in grapefruit taste. Research results indicate that taste is a crucial factor in consumer grapefruit purchasing patterns, particularly repeat purchases (Grapefruit Sensory Evaluation Study, February 19, 2002, conducted by the FDOC).

One study, compiled in April of 2002 by the FDOC, Blue Ribbon Committee on Grapefruit, links the 30-percent decline in fresh grapefruit sales in less than 10 years to customer attrition and consumer perceptions of inconsistent taste. Another study conduced by Opinion Dynamics Corporation, a market research group (February 20, 2002), states that taste is by far the most important consideration in consumer purchases of fruit.

A “Grapefruit Sensory Evaluation Study” conducted by the FDOC in 1997, concluded that the major determinant of repeat purchases of fresh grapefruit was the flavor of the consumer's first grapefruit purchase of the season. The results of this study indicate a strong correlation between sweetness of flavor and consumer's willingness to make additional purchases. The more-bitter the consumer's initial grapefruit experience, the less likely the consumer was to make an immediate repeat purchase. Conversely, increased sweetness resulted in increased repeat purchases of fresh grapefruit.

An additional study prepared by the Compendium Group, a market research group, for the FDOC Grapefruit Strategy Working Session, February 2002, also stressed the importance of consumer perceptions and expectations in purchasing decisions. According to this study, consumers associate sweetness of grapefruit flavor to the overall quality of the fruit. The study states “consumers want consistent fruit that tastes the way they want it.”

In addition to the abovementioned market research, there is strong industry support for an increase in the minimum maturity requirements. Industry support for an increase in the minimum maturity requirements was indicated through memos representing nearly 80 percent of Florida grapefruit production. Indian River Citrus League requested, in a memo to the Committee, a raise in the minimum maturity to 8.0 percent soluble solids and a 7.2 to 1 solids to acid ratio, a ratio slightly lower than ultimately recommended by the Committee. Florida Citrus Packers and the Peace River Citrus Growers Association supported an even larger increase in the minimum maturity standard. Several Committee members also expressed strong support for an increase.

The Committee's recommendation to raise the minimum maturity standard incorporates its belief that a sweeter fresh grapefruit is more attractive to consumers, and that consumer satisfaction with taste will lead to an increase in repeat purchases. In turn, greater demand for fresh grapefruit benefits the industry as a whole, as increased demand will likely help stabilize market prices.

While the recommendation to increase the minimum maturity standard was accepted by a majority of Committee members, some raised concerns about the impact of the higher standards on the different grapefruit producing regions and on early market sales. These concerns provided the basis for the three Committee members who opposed the Committee's recommendation.

One concern was that grapefruit production in areas lying to the north of the dominant, central grapefruit growing region could be disadvantaged due to differences in growing conditions. One member indicated there were some areas in the northern production region that may not be able to reach the higher maturity standard regardless of the use of a sliding scale, and, therefore, be excluded from the market. Variety of rootstock and geographic differences in soil and climate were listed as possible reasons for some production not being able to meet the higher standard.

Although some fruit may not meet the higher maturity standard, it is expected that it represents a very small percentage of the overall crop. The Committee's recommendation represents only a slight increase in the minimum maturity and includes a sliding scale. The sliding scale provides producers additional flexibility in meeting the higher standard. Also, the sliding scale helps producers in differing regions of the production area to meet the higher maturity requirements without compromising the desired outcome of a sweeter grapefruit taste.

Florida citrus maturity samples also indicate that the majority of Florida grapefruit will meet the higher maturity level, albeit later in the season. Therefore, while some fruit may require longer maturing periods before harvest, the majority of Florida citrus is expected to meet the higher standard at some point during the season. It is estimated that less than 2 percent of the Florida grapefruit crop will not make the higher maturity in a typical growing season.

Committee members also countered that, although a small percentage of Florida grapefruit production may not be able to meet the higher maturity standard, this percentage pales in comparison to the amount of grapefruit production currently left unharvested due to low economic returns. Several million boxes of grapefruit were left on the tree four of the past six seasons.

Another concern raised was that the higher maturity standard requires some fruit to be left on the tree longer than current industry practice, and that some producers will then forfeit the more lucrative early-season sales. A concern over a potential loss of competitive advantage was also voiced by the Gulf Citrus Growers Association (GCGA), which indicated in a memo to the Committee its opposition to an increase in the maturity standard. The southern production region has historically benefited from early-season sales as climate conditions allow their grapefruit production to mature sooner than the rest of the production area.

The FDOC maturity sampling results indicate that while soluble solids (sugars) levels are on average well over 8.0 from the onset of the grapefruit harvest season, average grapefruit ratio solids to acid levels in Florida grapefruit generally do not increase over 7.0 to 1 until the month of October, nearly one month after the traditional harvest season begins. Hence, a portion of Florida grapefruit crop will not meet the higher maturity requirements until slightly later in the season. However, maturity samples also indicate that meeting the increased maturity requirements later in the season is practicable for the majority of the Florida grapefruit industry as average soluble solids and solids to acid ratio levels are consistently above the recommended minimum threshold.

While the recommended increase in minimum maturity could cause a delay in some fruit being released into the higher priced, early-season market, the Committee pressed the importance of meeting consumer expectations of flavor in order to secure repeat purchases. There is a push to get fruit into the market early to take advantage of high prices available at the beginning of the season. However, early fruit tends to be less mature. The availability of this early, less mature fruit can negatively impact repeat purchases and reduce demand in the long term. In addition, the higher maturity requirements apply to all Florida fresh grapefruit. This change will impact of the entire industry, not just individual regions. Any harvesting delays resulting from this increase in maturity will impact all regions of the production area.

Committee members stated that while an increase in the minimum maturity standard could delay the release of some grapefruit onto the market, the potential opportunity costs of losing early-season sales will be more than compensated for by consumers buying grapefruit more frequently due to its sweeter, more appealing taste. Furthermore, the Committee estimated that only a small percentage of total Florida fresh grapefruit shipments will be affected by this change in the minimum maturity standard. In addition, the whole industry benefits from a stronger market demand and increased consumer satisfaction.

Taking into consideration the above concerns, the Committee believes increasing the maturity standard will benefit the industry. The Committee believes the higher maturity requirements will result in a sweeter grapefruit taste and improve producer returns through increased consumer purchases of fresh grapefruit by addressing consumer preferences for a more appealing taste. Moreover, as maturity naturally increases throughout the season, the overall impact on industry shipments will be equal to or less than 2 percent of the total grapefruit crop. Also, the sliding scale allows some flexibility for handlers to meet the higher maturity requirements without compromising the desired sweeter grapefruit taste.

Therefore, this rule raises the minimum maturity requirements from a 7.5 percent soluble solids (sugars) and a 7.0 to 1 solids to acid ratio with a sliding scale minimum ratio of 6.0 to 1, to an 8.0 percent soluble solids (sugars) and 7.5 to 1 solids to acid ratio with a sliding scale minimum of 7.2 to 1. The sliding scale is based on the FDOC Citrus Fruit Maturity Chart, and is as follows:

Section 8e of the Act provides that when certain domestically produced commodities, including grapefruit, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule increases the minimum maturity requirements under the domestic handling regulations, a corresponding change to the import regulations must also be accomplished. A rule making a similar change to the maturity requirements under the import regulations will be issued as a separate action.

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

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

There are approximately 75 grapefruit handlers subject to regulation under the order and approximately 11,000 producers of citrus in the regulated area. Small agricultural service firms, which includes handlers, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

Based on industry and Committee data, the average annual f.o.b. price for fresh Florida grapefruit during the 2001-02 season was approximately $6.98 per 4/5 -bushel carton, and total fresh shipments for the 2000-01 season were estimated at 31.68 million cartons. Approximately 33 percent of all handlers handled 72 percent of Florida grapefruit shipments. Using the average f.o.b. price, at least 66 percent of grapefruit handlers could be considered small businesses under SBA's definition. Therefore, the majority of Florida grapefruit handlers may be classified as small entities. The majority of Florida grapefruit producers may also be classified as small entities.

There has been a significant decline in consumer purchases of fresh Florida grapefruit. The Committee believes that taste is one of the prime factors effecting demand and repeat purchases. This rule increases the minimum maturity requirements from a 7.5 percent soluble solids and a 7.0 to 1 solids to acid ratio with a sliding scale minimum ratio of 6.0 to 1, to an 8.0 percent soluble solids (sugars) and a 7.5 to 1 solids to acid ratio with a sliding scale minimum ratio of 7.2 to 1. The increase results in a sweeter tasting fruit, particularly in early months of the harvest season, and should increase consumer demand for fresh grapefruit. The Committee made its recommendation at its May 22, 2002 meeting, in a vote of thirteen in favor of this change, with three opposed. This rule modifies the grade provisions of § 905.306. Authority for this action is provided in § 905.52 of the order.

The increased minimum maturity requirements results in a sweeter grapefruit tasting product being released into the marketplace, particularly during the early months of the season. Lower maturity, which often translates into a more tart or bitter grapefruit taste, is typical of early season fresh-picked grapefruit. Market research indicates that a sweeter grapefruit taste is more desirable to consumers and could contribute to more repeat purchases of fresh grapefruit.

A “Grapefruit Sensory Evaluation Study” conducted by the FDOC in 1997, concluded that the major determinant of repeat purchases of fresh grapefruit was the flavor of the consumer's first grapefruit purchase of the season. The results of this study indicate a strong correlation between sweetness of flavor and consumer's willingness to make additional purchases. The more-bitter the consumer's initial grapefruit experience, the less likely the consumer was to make an immediate repeat purchase. Conversely, increased sweetness resulted in increased repeat purchases of fresh grapefruit.

The Committee discussed the potential costs associated with this action. It was mentioned that some producers could be disadvantaged by increased costs. Such costs may include, for example, the need for additional maturity checks and fruit that does not meet the higher maturity requirements.

The changes in this rule may require some producers to run additional maturity checks prior to harvest and shipping to ensure maturity. While additional maturity checks could be required for some, such checks are considered a standard practice within the industry and are not expected to result in significant increased costs to producers. Additional maturity tests could be avoided by simply delaying the harvest of the groves in question. Also, the overall impact of this change on shipments is expected to be minimal. Because grapefruit continues to mature throughout the season, the overall impact on industry shipments should be small, with only a small part of the grapefruit crop, equal to or less than 2 percent of overall production, possibly not meeting the increased maturity. The sliding scale also provides some additional flexibility to help producers meet the higher maturity requirements.

This rule may necessitate a delay in the onset of the fresh grapefruit harvest for some producers. This may mean selling fruit later in the season, and possibly missing the higher prices typically available in the early-season. However, the higher maturity requirements apply to all Florida fresh grapefruit. This change will impact on the entire industry, not just individual regions. Any harvesting delays resulting from this increase in maturity will impact all regions of the production area.

In addition, it is anticipated that this change will result in higher consumer satisfaction and more repeat purchase, which should strengthen demand and stabilize prices. Therefore, the Committee believes the benefits gained from increased sales as a result of more frequent consumer purchases outweigh any losses associated with slightly lower prices received for shipments delayed due to increased maturity requirements. Any additional harvesting costs should also be compensated for through increased sales and stability in on-tree prices.

The purpose of this rule is to help stabilize the market and improve producer returns by increasing the number of repeat purchases of grapefruit, particularly earlier in the season. Based on the information given above, market research indicates this rule provides the consumer with a product that is closer to consumer expectations in terms of sweetness of flavor, therefore resulting in an increased demand for fresh grapefruit. The opportunities and benefits of this rule are expected to be available to all grapefruit handlers and producers regardless of their size of operation.

The Committee considered alternatives to taking this action. One alternative considered was a fixed maturity rate near the level identified in the market research studies of a level of 8.5 percent soluble solids and an 8.0 to 1 solids to acid ratio or higher. Committee members believed this option would be too drastic of a change to effectuate in one season. While market research demonstrates that consumer tastes prefer a higher soluble solids (sugars) and ratio combination and sweeter taste, many producers would not be able to achieve that level until much later into the season. Therefore, this option was rejected.

Another alternative considered was a fixed maturity rate of 8.0 percent soluble solids and a 7.5 to 1 solids to acid ratio without the addition of an equivalent soluble solids and solids to acid ratio sliding scale. However, due to geographical and climactic differences between varying regions in the production area, some Committee members believed that some producers would have more difficulty in achieving the fixed rate, therefore disproportionately foregoing the more lucrative early season sales. Therefore, this alternative was also rejected.

The Committee also discussed leaving the regulations as currently issued. However, the majority of Committee members agreed that some change to minimum maturity was necessary to improve consumer demand for fresh grapefruit and to help them compete in the present market. Consequently, this alternative was also rejected.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. However, as previously stated, grapefruit have to meet certain requirements set forth in the standards issued under the Agricultural Marketing Act of 1946 (7 CFR 1621 et seq. ). Standards issued under the Agricultural Marketing Act of 1946 are otherwise voluntary.

The Committee's meeting was widely publicized throughout the citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 22, 2002, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. In addition, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

This rule invites comments on an increase in the minimum maturity requirements prescribed under the order. Any comments received will be considered prior to finalization of this rule.

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) Handlers will begin shipping grapefruit at the end of August; (2) Florida grapefruit handlers are aware of this issue, which has been widely discussed within the industry; (3) the Committee recommended this change at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements, Tangelos, Tangerines.

The FAA has received reports of smoke in the cockpit caused by electrical short circuits between the pilot's and copilot's foot warmers and the composite floorboards. A short circuit in a foot warmer causes electrical current to flow through the metal heelplate of the foot warmer to the composite floorboards. Due to the high resistance of the composite floorboards, the circuit breaker may not open, or the opening could be significantly delayed.

After the first incident, that occurred on an older design of the foot warmer, the manufacturer re-designed the foot warmer to minimize the potential for this failure mode. After the latest incident, the re-designed foot warmer was evaluated, and was found to have the same potential for an electrical short circuit. This condition, if not corrected, could result in outgassing of the faceply material of the composite floorboard, and consequent smoke in the cockpit.

We have reviewed and approved Learjet Alert Service Bulletin SB A45-21-14, dated May 3, 2002, which describes procedures for pulling the FOOT WARM circuit breaker located on the copilot's circuit breaker panel. The alert service bulletin also describes procedures for installation of a collar on the foot warmer circuit breaker to prevent the FOOT WARM circuit breaker from being activated.

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 prevent an electrical short circuit in the pilot's and copilot's foot warmers, which could result in outgassing of the faceply material of the composite floorboard, and consequent smoke in the flightdeck. This AD requires pulling the FOOT WARM circuit breaker located on the copilot's circuit breaker panel, and installing a collar on that circuit breaker. The actions are required to be accomplished in accordance with the alert service bulletin described previously.

This is considered to be interim action. The manufacturer has advised that it currently is developing a modification that will address the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.

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-167-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 final AD 96-18-14 that is the subject of these corrections affects owners and operators of Hartzell Propeller Inc. HC-A3V, HC-B3M, HC-B3T, HC-B4M, HC-B4T, and HC-B5M series propellers who are required to perform hub replacements over a 10-year time frame with a concurrent blade and blade clamp inspection.

As published, AD 96-18-14 (61 FR 47809, September 11, 1996) contains errors that may prove to be misleading and need to be clarified.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-21-08, Amendment 39-11940 (65 FR 65731, November 2, 2000), which is applicable to Pratt & Whitney JT8D series turbofan engines, was published in the Federal Register on January 7, 2002, (67 FR 697). Subsequently, a supplemental proposal, which corrected the engine applicability in the proposal published on January 7, 2002, was published in the Federal Register on February 14, 2002 (67 FR 6888). That action proposed to require modifications to the airworthiness limitations section of the manufacturer's manual and an air carrier's approved continuous airworthiness maintenance program to include required enhanced inspections of selected critical life-limited parts at each piece part exposure.

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

Several commenters request correction of errors in the applicability of the notice of proposed rulemaking (NPRM).

The FAA agrees. Most of the applicability errors were corrected with the issuance of the supplemental NPRM; however, in paragraph (b) the engine manual referenced to perform the inspections was incorrectly identified. The referenced Engine Manual is corrected corrected in this final rule.

One commenter requests a 180-day period between the publication date and the effective date of the AD, similar to AD 2000-21-08.

The FAA agrees. The effective date of this AD has been extended to 180 days after publication to allow time for the specific procedures to be published. The extra time, until the AD becomes effective, should also allow the manufacturer to issue a manual revision.

One commenter believes that the FAA has reversed its position relative to not incorporating part numbers in the AD.

The FAA partially agrees. As the commenter notes, the FAA had previously viewed the engine manual for this engine model to be structured so as to make reference to “all” part numbers impractical. The FAA has again reviewed the engine manual and the proposed new changes and has determined that individual part numbers may be removed. Therefore, this AD references “all” part numbers, as with other engine lines. The decision not to include part numbers was originally made to accommodate the industry. The removal of part numbers eliminates the requirement to modify the TLS and Continuous Airworthiness Maintenance programs every time a new part number is introduced by the manufacturer for those parts covered by the AD.

Two commenters express concern over the proposed cleaning and inspection procedures of the assembled high pressure turbine (HPT) and shaft assembly. Residual alkaline cleaning solution may introduce corrosion in the mating surfaces of the disk, shaft, or bolts, or damage the coated surfaces of the shaft during the subsequent rinse cycle. Entrapped fluorescent penetrant inspection (FPI) fluid may lead to chemical degradation of the disk shaft assembly.

The FAA disagrees. The standard practice operating procedure for alkaline cleaning of the first stage HPT disk and shaft assembly requires a fresh water rinse after performing the alkaline cleaning. When properly rinsed, the residual alkaline cleaning solution is removed. Many overhaul shops have been using the alkaline and subsequent rinse on this part geometry and more complex part geometries for years without any reports of detrimental effects caused by the alkaline solution. In additon, all solutions used in the FPI process, penetrants, emulsifiers and developers, are not corrosive to engine parts and have passed corrosion compatibility testing. Based on the above supporting data, the FAA has determined that the proposed cleaning and inspection processes meet the applicable airworthiness requirements, and are therefore approved for the first stage HPT disk and shaft assembly as stated in the Engine Manual, 481672, Section 72-52-04, inspection “04.

One commenter requests a change to the view of Figure 801 of inspection—04. The present view displays a disassembled view of the disk and shaft assembly, which could lead to confusion as the inspection applies to the assembly.

The FAA agrees. The manufacturer has agreed to change Figure 801 to show the first stage HPT disk and shaft assembly in place of the disassembled view currently contained in the inspection procedure.

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

There are approximately 5,821 Pratt & Whitney JT8D series turbofan engines of the affected design in the worldwide fleet. The FAA estimates that 5,821 engines installed on aircraft of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per engine to perform the required enhanced inspections. The average labor rate is $60 per work hour. The cost of the enhanced inspections per engine is approximately $480 per year while the approximate total cost to the U.S. fleet will be $2,794,080 per year.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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

Federal Register Document 02-18620, Airspace Docket 02-AAL-1, published on July 25, 2002 (67 FR 48545) revised the Class E airspace area at Cordova, AK. The verbiage “* * * 060° bearing from the Glacier River NDB extending from the 4.1-mile radius to 6 miles northeast * * *” should read “* * * 114° bearing from the Glacier River NDB extending from the 4.1-mile radius to 6 miles southeast * * *” and the verbiage “* * * from lat. 60° 31′ 00″ N, long. 145° 20′ 00″ W; to lat. 60° 31′ 03″ N, long. 145° 20′ 59″ W.” should read “* * * from lat. 60° 31′ 03″ N, long. 145° 20′ 59″ W; to lat. 60° 32′ 45″ N, long. 145° 33′ 43″ W.” This action corrects these errors.

Accordingly, pursuant to the authority delegated to me, the Class E description listed for the Cordova, Merle K. (Mudhole) Airport as published in the Federal Register on July 25, 2002 (67 FR 48545), ( Federal Register Document 02-18620), is corrected as follows:

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

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

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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

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

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

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

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

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

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

We encourage you to comment on this test schedule by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this notice [CGD07-02-104], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

The existing regulations for the Hobe Sound (SR 708) bridge in 33 CFR 117.5, require the bridge to open on signal.

The Town of Jupiter Island requested on June 18, 2002, that the Coast Guard review the existing regulation of the Hobe Sound drawbridge as they believe the existing regulations are not meeting the needs of vehicle and vessel traffic. This test deviation will allow the bridge to open only on the hour, 20 minutes after the hour, and 40 minutes after the hour. We will utilize the data collected from this test deviation to determine if new operating regulations need to be created for this bridge to facilitate vehicle and vessel traffic movement.

The District Commander has granted a test deviation from the operating requirements listed in 33 CFR 117.5 to evaluate the effect of this new schedule on vehicle and vessel traffic. Under this deviation, the Hobe Sound bridge need only open on the hour, 20 minutes after the hour, and 40 minutes after the hour from 7 a.m. on November 1, 2002 until 6 p.m. on January 27, 2003.

On October 4, 2001, we published a temporary final rule entitled “Temporary Requirements for Notification of Arrival in U.S. Ports” in the Federal Register (66 FR 50565). Subsequently, we published two corrections in the Federal Register [November 19, 2001 (66 FR 57877)] and [January 18, 2002 (67 FR 2571)]. On May 30, 2002, we extended the effective period of the temporary rule through September 30, 2002 (67 FR 37682).

We published a related notice of proposed rulemaking (NPRM) to make permanent changes to the notice of arrival requirements [”Notification of Arrival in U.S. Ports” June 19, 2002 (67 FR 41659)]. We expected the extension of the temporary rule through September 30, 2002, to provide us enough time to complete the permanent changes to the notice of arrival requirements. However, on July 23, 2002, we published an NPRM proposing to further extend the effective period of the temporary rule [67 FR 48073].

The comment period ended on August 22, 2002, and we received no comments. We are, therefore, further extending the effective period of the temporary rule until March 31, 2003, to ensure sufficient time to complete the changes. Continuing the temporary rule in effect while the permanent rulemaking is in progress will help to ensure the security of our ports and the uninterrupted flow of maritime commerce during that period.

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

As discussed in the preamble, the Coast Guard has temporarily changed the notice of arrival (NOA) regulations and is extending the effective period of those requirements until March 31, 2003. When assessing the impact of the temporary requirements, we estimated that providing the Coast Guard with the additional information about passengers, crew, and cargo will impose minimal burden on vessels already complying with the notification requirements of 33 CFR part 160, subpart C. As explained below, the total cost to extend the effective period of the temporary rule should not exceed $377,324:

Cost and Burden. Coast Guard data on Notification of Arrival information for 1998 and 1999 was used to estimate the maximum populations that will be affected by this rule. Table 1 categorizes the affected vessel population into four sub-populations. They are:

• “Non-AMVER/Non-Great Lakes Vessels”—vessels already required to comply with NOA regulations;

• “AMVER”—vessels complying with the Automated Mutual Assistance Vessel Rescue system and that were exempt from NOA requirements prior to the temporary rule;

• “Great Lakes Vessels”—vessels greater than 300 gross tons, on Great Lakes routes, that were exempt from NOA requirements prior to the temporary rule; and

• “Vessels on Scheduled Routes”—vessels operating upon a route that is described in a schedule that is submitted to the Captain of the Port for each port or place of destination listed in the schedule. The table also sets out the number of vessels and their total number of U.S. port calls (arrivals) for each vessel sub-population.

The Coast Guard is implementing the permanent safety zone in 33 CFR 165.909(a)(9) (67 FR 44560, July 3, 2002), as well as the permanent safety zone in 33 CFR 165.909(a)(28) (67 FR 44560, July 3, 2002) for fireworks displays in the Captain of the Port Milwaukee Zone during September 2002. The following safety zones are in effect for fireworks displays occurring in the month of September 2002:

Indian Summer Fest Fireworks—Milwaukee, WI. This safety zone will be enforced on September 6, 2002, from 9:50 p.m. until 10:25 p.m. In the event of inclement weather on September 6, 2002, the safety zone will be enforced from on September 8, 2002 from 9:20 p.m. until 9:55 p.m.

Milwaukee River Challenge Boat Races—Milwaukee, WI. This safety zone will be enforced on September 21, 2002, from 12 p.m. until 6 p.m.

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

On April 10, 2002, the Commonwealth of Massachusetts submitted a formal revision to its SIP. The SIP revision consists of 15 percent and post-1996 rate-of-progress (ROP) emission reduction plans for the Massachusetts portion of the Boston-Lawrence-Worcester serious ozone nonattainment area. Massachusetts submitted a minor amendment to the ROP plans on July 26, 2002. We previously approved ROP plans that the State of New Hampshire submitted for the portions of this nonattainment area within its borders.

This Supplementary Information section is organized as follows:

EPA is approving ROP emission reduction plans submitted by Massachusetts for its portion of the Boston-Lawrence-Worcester serious ozone nonattainment area as revisions to Massachusetts' SIP. This area is referred to as the Eastern Massachusetts area in the remainder of this notice. The ROP plans document how Massachusetts complied with the provisions of Sections 182 (b)(1) and (c)(2)(B) of the Federal Clean Air Act (the Act). 42 U.S.C. 7511a (b)(1) and (c)(2)(B). These sections of the Act require states containing certain ozone nonattainment areas to develop strategies to reduce emissions of the pollutants that react to form ground level ozone.

Massachusetts was required to develop plans to reduce ozone precursor emissions because it contains a serious ozone nonattainment area. A final rule published by EPA on November 6, 1991 (56 FR 56694) designated ten counties in the eastern part of Massachusetts a serious ozone nonattainment area. Sections 182 (b)(1) and (c)(2)(B) of the Act require that serious ozone nonattainment areas develop ROP plans to reduce ozone forming pollutant emissions in the nonattainment area.

As stated above, two provisions of the Act make achieving these emission reductions necessary. Under section 182(b)(1), Massachusetts needed to develop a plan to reduce volatile organic compound (VOC) emissions by 15 percent by 1996. These plans are referred to as “15 percent ROP” plans. Requirements in section 182(c)(2)(B) and (C) of the Act instruct Massachusetts to achieve additional emission reductions. These additional reductions must lower ozone precursor emissions (VOC or nitrogen oxides) by 9 percent by 1999. These plans are referred to as “post 1996 ROP” plans.

VOCs are emitted from a variety of sources, including motor vehicles, a variety of consumer and commercial products such as paints and solvents, chemical plants, gasoline stations, and other industrial sources. Nitrogen oxides (NO X ) is emitted from motor vehicles, power plants, and other sources that burn fossil fuels.

VOCs and NO X react in the atmosphere to form ozone, the prime ingredient of smog in our cities and many rural areas of the country. Though it occurs naturally at elevated levels high in our atmosphere, at ground level it is the prime ingredient of smog. When inhaled, even at very low levels, ozone can:

Industrial facilities that emit large amounts of these pollutants are monitored by the Commonwealth's environmental agency, the Department of Environmental Protection (DEP). Many facilities are required to emit air pollutants through tall stacks to ensure that high concentrations of pollutants do not exist at ground level. Permits issued to these facilities include information on which pollutants are being released, how much may be released, and what steps the source's owner or operator is taking to reduce pollution. The Massachusetts DEP makes permit applications and permits readily available to the public for review. You can contact the Massachusetts DEP for more information about air pollution emitted by industrial facilities in your neighborhood.

EPA proposed to approve a prior version of the Massachusetts 15 percent plan submitted to EPA in 1997, subject to certain conditions (see 62 FR 37527, July 14, 1997). EPA did not grant final approval because Massachusetts did not meet the conditions EPA listed in that proposal. Specifically, Massachusetts did not meet its commitment to begin an automobile emission “inspection and maintenance” (I/M) program. EPA did not propose action on Massachusetts' post 1996 ROP plan in the July 14, 1997 notice.

On April 10, 2002, Massachusetts submitted revisions to its 15 percent and post 1996 ROP plans (the “revised ROP plans”) and submitted minor amendments on July 26, 2002.

Massachusetts did not reduce its hydrocarbon emissions by 15 percent by November 15, 1996, or reduce ozone precursor emissions an additional 9 percent by November 15, 1999. However, the DEP has shown that all of the emission reductions required of 15 percent and post-1996 plans occurred by mid-summer of 2001. EPA believes it can approve both of these plans for the reasons provided below.

Subsequent to EPA's July 14, 1997 proposed action, ROP plans for the Eastern Massachusetts serious area became unnecessary because EPA determined, in accordance with a May 10, 1995 policy, 1 that the area met the one-hour National Ambient Air Quality Standard (NAAQS) for ozone, and that such planning requirements were unnecessary in light of the clean air in the area. EPA based that determination on three years of complete, quality assured ambient air monitoring data for the years 1996-98 which demonstrated that the one-hour ozone NAAQS had been attained in this area. On the basis of that determination, EPA also determined that certain ROP and attainment demonstration requirements, along with certain other related requirements, of Part D of Title 1 of the Act were no longer applicable to the Eastern Massachusetts area for so long as the area continued to attain the one hour ozone NAAQS. However, ozone monitoring data for the years 1999 to 2001 indicate that the Eastern Massachusetts area violated the one hour ozone standard over that three year time period. Therefore, EPA no longer has a basis for deferring the planning requirements that attainment of the one-hour ozone NAAQS had rendered unnecessary.

In its April 10, 2002 submittal, Massachusetts is not able to demonstrate a 15 percent VOC emission reduction occurred in the Eastern Massachusetts area by the November 15, 1996 milestone date, or that an additional 9 percent reduction in ozone precursor emissions occurred by the November 15, 1999 milestone due to delayed implementation of its I/M program. However, the Commonwealth was not required to make this showing during the years it monitored attainment of the one-hour ozone standard. It is not possible to require Massachusetts to make this demonstration, as those dates have passed. Therefore, taking into account the individual circumstances surrounding this SIP submission and guidance within the May 10, 1995 policy memorandum, we notified Massachusetts that we would approve Massachusetts' ROP plans if the DEP could show that ozone precursor emissions were lowered by 24 percent compared to 1990 levels by 2001, instead of by the original 1999 milestone date. At least 15 percent of the 24 percent reduction must come from the VOC inventory.

Once a statutory deadline has passed and has not been replaced by a later one, the deadline then becomes “as soon as possible.” Delaney v. EPA , 898 F.2d 687, 691 (9th Cir. 1990), cert. den. 498 U.S. 998 (1990). EPA has interpreted this requirement to be “as soon as practicable.” The state's revised ROP plans for Eastern Massachusetts, submitted on April 10, 2002, and amended on July 26, 2002, demonstrate that a 24% reduction in ozone precursor emissions occurred by 2001. This means that the overall environmental benefit represented by the 15 percent and post-1996 ROP requirements occurred, and in fact occurred while the Eastern Massachusetts area still monitored attainment of the one-hour standard. EPA believes that this demonstration meets the as soon as practicable test. Therefore, we are now approving the 15 percent and post-1996 plans.

By 2001, the Commonwealth's plans indicate that VOC emissions in the Eastern Massachusetts area will decrease by 32 percent, and NO X emissions will decrease by 13 percent compared to 1990 emission levels as a result of federal and state control programs.

DEP's April 10, 2002 submittal illustrates how Massachusetts met the post-1996 ROP requirements of section 182(c)(2)(B) of the Act, and the 15 percent ROP requirements of section 182(b) of the Act. Both sets of reductions were calculated from a 1990 baseline, and the plans describe how any growth in emissions was offset. Under section 182(c)(2)(C) of the Act, NO X reductions can also be used to meet the post-1996 ROP emission reduction obligation; the Act only allows for VOC reductions in 15 percent ROP plans.

The manner in which states are to determine the required level of emission reductions is described in EPA guidance documents entitled, “Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent ROP Plans,” (EPA-452/R-92-005), and “Guidance on the Post-1996 Rate-of-Progress Plan and the Attainment Demonstration” (EPA 452-93-015). The calculation procedures to determine both the 15 percent and post-1996 ROP emission reduction obligations are similar. Table 1 below contains a summary of DEP's calculations for the Eastern Massachusetts area.

As shown below in Table 1, DEP's April 10, 2002 submittal demonstrates more than a 24 percent reduction in ozone precursor emissions occurred by mid-summer, 2001. In other words, Massachusetts shows that their projected, controlled 2001 emission levels for VOC and NO X are lower than the 1999 target emission levels calculated for these pollutants. The 1999 target levels represent the amount of emissions that can be emitted after accounting for the required 24 percent reduction in ozone precursor emissions, and other required emission reductions that the Act does not allow be credited towards the ROP emission reduction obligation, such as reductions from the pre-1990 Federal Motor Vehicle Control Program (FMVCP), revisions to deficient reasonably available control technology (RACT) regulations, and corrections to deficient automobile I/M programs.

One step in the above demonstration consists of a projection of emissions from the base year to a future year. A prior version of these plans submitted to EPA on March 31, 1997 contains emission projections that were obtained by applying growth factors to the baseline 1990 emissions to obtain estimated 1999 emission levels. The Commonwealth's current submittal contains an improved projection of emissions that uses actual 1999 emissions data. The 1999 emissions data, in addition to being much more current than the 1990 estimates, also contain improvements to area and non-road mobile source estimation methodologies, the most significant of which is use of the EPA's draft non-road model. Although this model is not a final model, Massachusetts DEP believes, and we agree, that it provides a more accurate evaluation of air pollution emissions from non-road engines than the alternative emission estimation procedure available to DEP, which consists of estimates prepared in 1991 by an EPA contractor. The Commonwealth projected its 1999 emissions to 2001 through application of growth factors.

We commented during the public hearing process that the DEP needed to ensure that it calculated its 1999 emission estimates with the same emission factors that were used to determine 1990 baseline emissions. Since the 15 percent and 9 percent ROP emission reduction obligations are calculated off of the 1990 baseline, use of consistent emission factors in the baseline and projected emission inventories ensures that emission reductions due to changed emission estimation procedures are not reflected in the plan.

Massachusetts' April 10, 2002 submittal and July 26, 2002 amendment contain several revisions to the 1990 baseline area and non-road emission estimates made to ensure that consistent emission factors were used to develop the 1990 and 1999 inventories. DEP then revised its target level calculations using the new 1990 baseline as shown below in Table 1. We approve the revisions made by the Commonwealth to its 1990 baseline emissions.

The Massachusetts ROP plans demonstrate that the VOC and NO X emission reductions from the control strategy will achieve sufficient emission reductions to lower 2001 emission levels below the target levels calculated for each pollutant.

The Commonwealth's post-1996 control strategy matches the control strategy described in the EPA's July 14, 1997 proposed approval of the Massachusetts 15 percent plan, and also includes emission reductions from the Commonwealth's NO X RACT and Ozone Transport Commission (OTC) NO X Memorandum of Understanding (MOU) rule, and emission reductions from federal measures limiting emissions from non-road engines promulgated between 1996 and 1999. Reductions from the NO X rules and from the federal non-road standards are described further below.

Massachusetts has adopted a NO X RACT regulation, the citation for which is 310 Code of Massachusetts Regulations 7.19. The regulation applies to facilities with potential emissions of 50 tons per year or greater. Facilities covered by the rule needed to comply by May 31, 1995. Massachusetts submitted the rule to EPA on July 15, 1994, as a revision to the State's SIP. EPA approved the State's NO X RACT rule on September 2, 1999 (64 FR 48095).

The DEP submitted a rule entitled “310 CMR 7.27: NO X Allowance Program” to EPA to meet the requirements of the ozone transport commission's NO X MOU. We approved the rule into the state's SIP on June 2, 1999 (64 FR 29567). By 2001, the Commonwealth's NO X RACT and NO X MOU rules will reduce point source emissions by 130 tpsd in the Eastern Massachusetts area.

In the July 3, 1995 Federal Register (60 FR 34581), EPA promulgated the first phase of the regulations to control emissions from new non-road spark-ignition engines. The regulation is found at 40 CFR part 90, and is titled, “Control of Emissions From Non-road Spark-Ignition Engines.”

The first phase of the new non-road standards will cause a substantial reduction of VOC emissions by 2001. Massachusetts used the EPA's Non-road model to estimate the reductions that will accrue by 2001. Although this is a draft model, it provides a better estimate of emissions than the previous emission estimation methodology available for this sector. The previous methodology was based on the document, “Non-road Engine and Vehicle Emission Study Report” (Publication nos. EPA-21A-2001; EPA460/3-91-002). The sale of reformulated gasoline in Massachusetts also reduces non-road emissions. The combined effect of reformulated gasoline and the new non-road standards will lower non-road VOC emissions by 18 tpsd in the Eastern Massachusetts area.

EPA is only approving ROP plans for the Eastern Massachusetts serious area because we previously approved the ROP plans for the Western Massachusetts serious area in a final rule published in the Federal Register on November 15, 2000 (65 FR 68896).

Ozone levels have decreased in the Eastern Massachusetts area during the 1990's, due in part to emission reductions achieved by these plans. Pollution control measures implemented by states upwind of Massachusetts have also helped ozone levels decline in this area of the Commonwealth.

Ozone nonattainment areas classified as serious or above must submit to the EPA, pursuant to section 182(c)(9) of the Act, contingency measures to be implemented if an area misses an ozone SIP milestone. The Massachusetts ROP plan demonstrates that surplus emission reductions beyond those required to meet ROP requirements exist which cover the 3 percent contingency requirement of the Act.

Section 176(c) of the Act, and 40 CFR 51.452(b) of the federal transportation conformity rule require states to establish motor vehicle emissions budgets in any control strategy SIP that is submitted for attainment and maintenance of the NAAQS. Massachusetts will use these budgets to determine whether proposed projects that attract traffic will “conform” to the emissions assumptions in the SIP.

Massachusetts' revised ROP plans contain motor vehicle emission budgets for the year 2001. However, the Massachusetts DEP submitted an ozone attainment demonstration plan to EPA in 1998 that contains mobile source emission budgets for Eastern Massachusetts for 2003. Since the year 2003 budgets are more restrictive, cover a time frame later than the ROP plans (which include the current transportation analyses milestone years), and are based on the attainment plan, these 2003 VOC and NO X budgets take precedence over motor vehicle emission budgets for earlier years. The specific 2003 budgets for the Eastern Massachusetts area are 117.1 tpsd for VOC, and 243.3 tpsd for NO X .

EPA is approving 15 percent and post-1996 rate-of-progress plans for the Massachusetts portion of the Boston-Lawrence-Worcester serious ozone nonattainment area.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective October 28, 2002 without further notice unless the Agency receives relevant adverse comments by September 27, 2002.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. EPA will then address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If we receive no such comments, the public is advised that this rule will be effective on October 28, 2002 and we will take no further action on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2002. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we” or “our” is used means EPA.

The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Section 110(a)(2) of the Act provides that each implementation plan admitted by a State must be adopted after reasonable notice and public hearing. Section 110(1) of the Act similarly provides that each revision to an implementation plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing.

EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see section 110(k)(1) and 57 FR 13565). EPA's completeness criteria are set out at 40 CFR part 51, appendix V. EPA attempts to make completeness determinations within 60 days of receiving a submission. However, a submittal is deemed complete by operation of law if a completeness determination is not made by EPA six months after receipt of submission.

To entertain public comment, the State of Montana, after providing adequate public notice, held public hearings on July 5, 2000, January 23, 2001 and May 10, 2001 to address revisions to the SIP. Following the public hearings and public comment period, the Montana Board of Environmental Review adopted the revisions. Revisions to ARM 17.8.102 and 17.8.103 were adopted on September 15, 2000 and July 20, 2001, revisions to 17.8.323 were adopted on March 16, 2001 and revisions to 17.8.302, 17.8.602, 17.8.702, 17.8.902, and 17.8.1002 were adopted on July 20, 2001.

The Governor of Montana submitted the revisions to the SIP with letters dated April 30, 2001, May 21, 2001 and December 20, 2001. The SIP revisions were reviewed by EPA to determine completeness in accordance with the completeness criteria set out at 40 CFR part 51, appendix V. The submittals were found to be complete.

This section was revised to update the dates of documents which are incorporated by reference. The 1999 editions of the Code of Federal Regulations, the Montana Code Annotated and the Administrative Rules of Montana are referenced in the regulation. These changes are necessary to allow the State to include the most recent editions of State statutes and rules and federal regulations. Specifically, incorporation by reference changes were made to ARM 17.8.102(1)(a), (c) and (d). Subsequent revisions were made to ARM 17.8.102(1)(a) and (d) in the December 20, 2001 submission, and these changes are discussed below.

In addition, the State of Montana deleted language from the title of this section that refers to the availability of referenced documents. When the State proposed this rule in 1996, the State included information concerning the availability of referenced documents for the entire chapter of air quality rules. In response to comments, the State decided to delete this language from the final rule and place it in separate rules in each rule subchapter. However, the State did not amend the title of the rule to reflect this revision from the proposed rule. Specifically, the title of the rule has changed from “Incorporation by Reference—Publication Dates and Availability of Referenced Documents' to “Incorporation by Reference—Publication Dates.” EPA believes these revisions are minor and we are approving them into the SIP.

The State revised ARM 17.8.103(1)(n) and (o) to correct references to statute subsections that were renumbered by the 1997 State legislature. Subsequent changes were made to ARM 17.8.103(1)(n) in the December 20, 2001 submission, and these changes are discussed below. EPA believes these revisions are minor and we are approving them into the SIP.

On April 30, 2001, the State submitted revisions to the Missoula City-County Air Pollution Control Program. EPA approved the Missoula City-County revisions on November 15, 2001 (66 FR 57391).

Also on April 30, 2001, the State submitted a new credible evidence rule (ARM 17.8.132). EPA will act on the credible evidence rule in a separate notice.

This revision repeals ARM 17.8.323, Sulfur Oxide Emissions—Primary Copper Smelter Rule. This rule was adopted by the State in 1972 and has remained in effect since that time, with minor amendments made in 1981. At the current time, there are no primary copper smelters operating within the State, and ARM 17.8.323 has been superceded by the federal New Source Performance Standards (NSPS) for primary copper smelters (40 CFR part 60, subpart P). The State believes the NSPS is more stringent than its Sulfur Oxide Emissions—Primary Copper Smelter rule. Additionally, the State has incorporated by reference the NSPS in ARM 17.8.302(1)(b) and has been delegated the authority to implement them ( see 66 FR 42427, August 13, 2001). Because there are no existing copper smelters in the State and any new copper smelter would be subject to NSPS, EPA believes it is acceptable to remove this rule from the SIP.

This section was revised to update the dates of documents which are incorporated by reference. The 2000 editions of the Code of Federal Regulations and the Administrative Rules of Montana are referenced in the regulation. In addition, the incorporation by reference of the United States Code (U.S.C.) has been changed to refer to the 1994 edition. These changes are necessary to allow the State to include the most recent editions of State statutes and rules and federal regulations. Specifically, incorporation by reference changes were made to ARM 17.8.102(1)(a), (b) and (d).

a. 17.8.103(1)(m)—This section was revised to make minor corrections to citation references to the Clean Air Act (CAA). The reference to section 7412(b)(1) of the CAA was changed to 112(b)(1).

b. 17.8.103(1)(n) and (p)—These sections were revised to update references to rules concerning hazardous waste to reflect renumbering of the State's rules. References to section 54 of the State rules have been changed to reference section 53. These sections also contain minor grammatical revisions.

a. 17.8.302(1)(d)—This section was revised to update references to rules concerning hazardous waste to reflect renumbering of the State's rules. Reference to section 54 of the State rules have been changed to reference section 53.

b. 17.8.302(1)(e)—This section was changed to correct a minor grammatical error.

c. 17.8.302(1)(f)—This section was amended to incorporate by reference the Federal National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills. The EPA adopted this rule on January 12, 2001 (40 CFR 63, subpart MM).

This section was revised to update references to rules concerning hazardous waste to reflect renumbering of the State's rules. Reference to section 54 of the State rules has been changed to reference section 53.

This section was revised to make minor corrections to citation references to the CAA.

These sections were revised to make minor corrections to citation references to the CAA. Specifically, reference to section 7503 of the CAA was changed to section 173. In addition, these sections were changed to correct minor grammatical errors.

EPA believes the December 20, 2001 revisions (identified 1-6 above) are minor and we are approving them into the SIP.

Also, pursuant to the State's December 20, 2001 submittal, which updated the effective date of the incorporated NSPS, on February 1, 2002, EPA updated the delegation of authority for the implementation and enforcement of the NSPS to the State. The February 1, 2002 letter of delegation to the State follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by us. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by us under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgations of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in the CAA.

The CAA Amendments of 1990 require all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM 10 ; those that emit 10 tons per year of any single hazardous air pollutant (HAP) (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of HAPs.

Revisions to the state and local agencies operating permits program are also subject to public notice, comment, and our approval.

The state of Missouri has requested that EPA approve as a revision to the Missouri SIP and part 70 Operating Permits Program recently adopted revisions to rule 10 CSR 10-6.065, Operating Permits.

The operating permits rule defines air contaminant sources which are required to obtain operating permits and establishes procedures for obtaining and complying with operating permits; it does not establish any air quality standards or guidelines.

Prior to this revision, this rule applied to all incinerators. However, on May 28, 2000, the MDNR was notified by the state's Attorney General's office that the authority to regulate these types of incinerators was limited by state statute to the University of Missouri Extension Service.

On the recommendation of the Attorney General's office, the MDNR has revised this rule to add an exemption for this type of incinerator. Specifically, subparagraph (19) was added to subsection (3)(C)—Exempt Emission Units. This exemption reads: “Noncommercial incineration of dead animals, the on-site incineration of resident animals for which no consideration is received or commercial profit is realized, as authorized in section 269.020.6, RSMo 2000.”

The MDNR has submitted emission inventory information which confirms that emissions from these sources is minimal (for example, particulate emissions are approximately one ton per year, or less), and that this exemption is not likely to have an adverse impact on ambient air quality. No existing incinerators in this source category are subject to the operating permit program, due to their de minimis size. These sources will continue to be constructed and operated in accordance with the requirements of the University of Missouri Extension Service.

In an unrelated revision, the MDNR has revised language in the Applicability section by removing a reference to “asphaltic concrete plants” because there is no definition for this type of source and no reason to specifically identify these sources since there is no special treatment for them. Deleting this reference does not change the applicability requirement for this rule. The rule is still applicable to asphaltic concrete plants.

Also, an exemption for restaurants and other retail establishments for the purpose of preparing food for employee and guest consumption was removed, and finally, a minor typographical revision was made by changing the spelling of “BTUs” to “Btus.”

Further discussion and background information is contained in the technical support document prepared for this action, which is available from the EPA contact listed above.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. Finally, the submittal meets the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

EPA is processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial, and make regulatory revisions required by state statute. Therefore, we do not anticipate any adverse comments.

Final action: EPA is approving as an amendment to the Missouri SIP revisions to rule 10 CSR 10-6.065, Operating Permits pursuant to section 110. EPA is also approving this rule as a program revision to the state's Operating Permits Program pursuant to part 70.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially 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.

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0210. 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, 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.

EPA, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for combined residues of the fungicide azoxystrobin, methyl(E)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate and the Z isomer of azoxystrobin, [methyl (Z)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrlate], in or on safflower at 1.0 part per million (ppm). This tolerance will expire and is revoked on June 30, 2005. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18-related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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. . . .”

Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

During recent years, growers in Montana and North Dakota have faced unusual frequent rains during June through August. Frequent rains favor development of Alternaria leaf spots caused by Alternaria carthami and A. alternata . Development of these diseases lead to severe yield losses. Montana and North Dakota have both declared crisis exemptions under FIFRA section 18 for the use of azoxystrobin on safflower for control of Alternaria Leafspot ( Alternaria carthami and A. alternata ). EPA concurs that emergency conditions exist for these States.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of azoxystrobin in or on safflower. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6). Although this tolerance will expire and is revoked on June 30, 2005, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on safflower after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether azoxystrobin meets EPA's registration requirements for use on safflower or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of azoxystrobin by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than Montana and North Dakota to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for azoxystrobin, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

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 azoxystrobin and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a time-limited tolerance for combined residues of azoxystrobin in or on safflower at 1.0 ppm. The most recent estimated aggregate risks resulting from the use of azoxystrobin are discussed in the Federal Register of September 21, 2001 (66 FR 48585) (FRL-6830-1), Final Rule establishing tolerances for residues of azoxystobin in/on acerola, atemoya, avocado, biriba, black sapote, leafy greens (Brassica) subgroup (subgroup 5B), bushberry subgroup (subgroup 13B), canistel, cherimoya, custard apple, eggplant, feijoa, grass forage, grass hay, guava, ilama, jaboticaba, jackfruit, juneberry, lingonberry, longan, loquat, lychee, mamey sapote, mango, okra, passion fruit, pawpaw, papaya, pepper, peppermint (tops), persimmon, pulasan, rambutan, salal, sapodilla, soursop, Spanish lime, spearmint (tops), star apple, starfruit, strawberry, sugar apple, tamarind, turnip (tops), watercress, wax jambu, and white sapote, because in that prior action, risks were estimated assuming tolerance level residues in all commodities for established tolerances, as well as those for which action was being proposed, such as in this safflower exemption use. Refer to the September 21, 2001 Federal Register document for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon that risk assessment and the findings made in the Federal Register document in support of this action. Below is a brief summary of the aggregate risk assessment.

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. A summary of the toxicological dose and endpoints for azoxystrobin for use in human risk assessment is discussed in Unit III.A. of the Federal Register of September 29, 2000 (65 FR 58404) (FRL-6749-1).

EPA assessed risk scenarios for azoxystrobin under acute, chronic, and short- and intermediate-term exposures.

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: Tolerance level residues were assumed and it was also assumed that 100% of the crops and other commodities with proposed or established azoxystrobin tolerances contained those residues. Anticipated residues, and percent crop treated (PCT) values of less than 100%, were not used.

Using these exposure assessments, EPA concluded that azoxystrobin exposure from food consumption will utilize 11% of the aPAD for the U.S. population, 11% of the aPAD for females 13 years and older, and 20% of the aPAD for children 1 to 6 years, the subpopulation at greatest exposure. In addition, despite the potential for acute dietary exposure to azoxystrobin in drinking water, after calculating drinking water levels of concerns (DWLOCs) and comparing them to conservative model estimated environmental concentrations (EECs) of azoxystrobin in surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 1.

The following assumptions were made for the chronic exposure assessments: Tolerance level residues were assumed and it was also assumed that 100% of the crops and other commodities with proposed or established azoxystrobin tolerances contained those residues. Anticipated residues and PCT values of less than 100%, were not used.

Using these exposure assumptions, EPA concluded that exposure to azoxystrobin from food will utilize 12% of the cPAD for the U.S. population, 11% of the cPAD for females 13 to 50 years, and 18% of the cPAD for children 1 to 6 years, the subpopulation at greatest exposure. Based on the use pattern, chronic residential exposure to residues of azoxystrobin is not expected. In addition, there is potential for chronic dietary exposure to azoxystrobin in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 2:

Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Azoxystrobin is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for azoxystrobin. A short-term risk assessment is required for adults because there is a residential handler inhalation exposure scenario. In addition, a short-term risk assessment is required for infants and children because there is a residential post-application oral exposure scenario. As no short-term or intermediate-term dermal endpoint was established, there is no dermal component to these aggregate risk assessments. For adults, the daily inhalation dose is aggregated with the chronic exposure to food and water. For infants and children, the incidental oral exposure from residential post-application activities for infants and children was aggregated with chronic exposure from food and water. EPA has concluded that food and residential exposures aggregated result in aggregate margin of exposures (MOEs) of 1,183 for adults and 490 for children 1 to 6 years. These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, short-term were calculated and compared to the EECs for chronic exposure of azoxystrobin in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 3:

Intermediate-term aggregate exposure takes into account non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level).

Azoxystrobin is currently registered for use(s) that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic food and water and intermediate-term exposures for azoxystrobin. An intermediate-term risk assessment is not required for adults because residential handler scenarios are not expected to occur for longer than a short-term timeframe. However, an intermediate-term risk assessment is required for infants and children because of the residential post-application oral exposure scenario. As no dermal endpoint was established, there is no dermal component to this aggregate risk assessment. As was necessary for the short-term aggregate assessment, the incidental oral exposure from residential post-application activities for infants and children was aggregated with average exposure from food and water. EPA has concluded that food and residential exposures aggregated result in an aggregate MOE of 580 for children 1 to 6 years. This aggregate MOE does not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, intermediate-term DWLOCs were calculated and compared to the EECs for chronic exposure of azoxystrobin in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect intermediate-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 4:

Adequate enforcement methodology is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PIRIB, 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.

No Codex, Canadian, or Mexican maximum residue levels have been established for residues of azoxystrobin in or on these commodities. Therefore, no tolerance discrepancies exist between countries for this chemical.

Therefore, the tolerance is established for combined residues of azoxystrobin, methyl(E)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate and the Z isomer of azoxystrobin, [methyl (Z)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrlate] in or on safflower at 1.0 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-2002-0210 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 October 28, 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 (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your written request to the Office of the Hearing Clerk in Rm. 104, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA. 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 (703) 603-0061.

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 VII.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 the docket ID number OPP-2002-0210, 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 time-limited tolerance under FFDCA section 408. 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 FIFRA section 18 exemption under FFDCA section 408, 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).

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-2002-0140. 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 August 8, 1997 (62 FR 42788) (FRL-5237-6), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 5F4550) by Cerexagri, Inc., 2000 Market Street, Philadelphia, PA 19103. This notice included a summary of the petition prepared by Cerexagri, Inc., the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.371 be amended by establishing tolerances for residues of the fungicide thiophanate-methyl in or on grapes at 5.0 part per million (ppm), and in or on pears at 7.0 ppm.

In the Federal Register of March 28, 2002 (67 FR 14944) (FRL-6829-1), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of pesticide petitions (PP 2E6355, 2E6367, and 2E6368) by the Interregional Research Project Number 4 (IR-4), 681 U.S. Highway #1 South, North Brunswick, NJ, 08902-3390. This notice included a summary of the petition prepared by IR-4. There were no comments received in response to the notice of filing.

The petitions requested that 40 CFR 180.371 be amended by establishing tolerances for combined residues of the fungicide thiophanate-methyl, (dimethyl [(1,2-phenylene)- bis(iminocarbonothioyl)] bis(carbamate), its oxygen analogue dimethyl-4,4-o-phenylenebis(allophonate), and its benzimidazole-containing metabolites (calculated as thiophanate-methyl), in or on potatoes at 0.05 ppm (PP 2E6367), on pistachios at 0.2 ppm (PP 2E6355), and on canola at 0.1 ppm (PP 2E6368).

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 tolerances for residues of thiophanate-methyl and its metabolite MBC, expressed as thiophanate-methyl on grapes at 5.0 ppm, on pears at 3.0 ppm, on pistachios at 0.1 ppm, on potatoes at 0.1 ppm, and on canola at 0.1 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance 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 thiophanate-methyl are discussed in Table 1 below. In addition, the nature of the toxic effects caused by carbendazim or MBC are discussed in Table 2 below. MBC which is also a pesticide is the primary metabolite and the metabolite of concern for thiophanate-methyl. The tables also include the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

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-2002-0215. 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 June 5, 2002 (67 FR 38660) (FRL-7177-4), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170), announcing the filing of pesticide petitions (PP 1E6272, 1E6285, and 2E6353) by IR-4, Technology Centre of New Jersey, Rutgers University, 681 U.S. Highway No. 1 South, North Brunswick, NJ 08902-3390. This notice included a summary of the petitions prepared by Valent USA Corporation, the registrant. There were no comments received in response to the notice of filing.

The petitions requested that 40 CFR 180.510 be amended by establishing tolerances for residues of the insecticide pyriproxyfen, 2-[1-methyl-2-(4-phenoxyphenoxy)ethoxypyridine, in or on acerola at 0.10 ppm, bushberry subgroup at 1.0 ppm, feijoa at 0.10 ppm, fruit, stone, group at 1.0 ppm, guava at 0.10 ppm, jaboticaba at 0.10 ppm, juneberry at 1.0 ppm, lingonberry at 1.0 ppm, longan at 0.30 ppm, lychee at 0.30 ppm, passionfruit at 0.10 ppm, pulasan at 0.30 ppm, rambutan at 0.30 ppm, salal at 1.0 ppm, spanish lime at 0.30 ppm, starfruit at 0.10 ppm, and wax jambu at 0.10 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 these actions. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for tolerances for residues of acerola at 0.10 ppm, bushberry subgroup at 1.0 ppm, feijoa at 0.10 ppm, fruit, stone, group at 1.0 ppm, guava at 0.10 ppm, jaboticaba at 0.10 ppm, juneberry at 1.0 ppm, lingonberry at 1.0 ppm, longan at 0.30 ppm, lychee at 0.30 ppm, passionfruit at 0.10 ppm, pulasan at 0.30 ppm, rambutan at 0.30 ppm, salal at 1.0 ppm, spanish lime at 0.30 ppm, starfruit at 0.10 ppm, and wax jambu at 0.10 ppm. EPA's assessment of exposures and risks associated with establishing these tolerances follow.

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 pyriproxyfen is discussed in Unit III.A. of the Final Rule on Pyriproxyfen Pesticide Tolerance published in the Federal Register of June 5, 2001 (66 FR 30065) (FRL-6782-5). Additionally, toxicological studies to the toxicological profile for pyriproxyfen are shown below in Table 1:

The dose at which no adverse effects are observed (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, margin of error (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 pyriproxyfen 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 180.510) for the residues of pyriproxyfen, in or on a variety of raw agricultural commodities: Almond hulls at 2.0 ppm; apple, pomace, wet at 0.8 ppm; citrus fruits at 0.3 ppm; citrus oil at 20 ppm; citrus pulp, dried at 2.0 ppm; cotton, gin byproducts at 2.0 ppm; cottonseed at 0.05 ppm; fruiting vegetables (except cucurbits) at 0.2 ppm; pistachio at 0.02 ppm; pome fruits at 0.2 ppm; tree nuts at 0.02 ppm; and walnuts at 0.02 ppm). Section 18s have been established for bean, succulent at 0.10 ppm, and stone fruits at 0.1 ppm, and are currently set to expire on June 30, 2003, and December 31, 2002, respectively. There are no livestock feed items associated with stone fruits, guava, lychee, blueberry, or the related crops, thus the proposed uses will not result in the transfer of any additional pyriproxyfen residues to livestock. Risk assessments were conducted by EPA to assess dietary exposures from pyriproxyfen 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. An acute dietary exposure analysis was not conducted since no acute doses or endpoints were selected for the general U.S. population (including infants and children) or the females 13-50 years old population subgroup.

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: The chronic dietary exposure was performed using published and proposed tolerance levels, DEEM TM default processing factors, and 100% crop treated (CT) assumptions for all commodities.

iii. Cancer . Pyriproxyfen was classified by EPA (June 1995) as a “Group E” chemical-negative for carcinogenicity to humans-based on the absence of carcinogenicity in mice and rats.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for pyriproxyfen 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 characteristics of pyriproxyfen.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and Screening Concentrations in Ground Water (SCI-GROW), which predicts pesticide concentrations in ground water. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous 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 ever 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 pyriproxyfen, they are further discussed in Unit III.E.

Pyriproxyfen is relatively long-lived in soil and water, with variable half-lives of approximately 2 weeks to 2 months. Pyriproxyfen is immobile, as indicated by the relative mobility scheme in Dragun (1998) for five soils and one sediment. The registrant determined the half-lives, 6.8 and 9 days, respectively, for the phenyl-label and pyridyl-label portions of pyriproxyfen. Since there is only one value, the longest half-life (9 days) was multiplied by 3 using the Agency's input guidance. Thus, the aerobic soil half-life in the modeling assessment was 27 days.

EPA determined that the residues of concern in water is pyriproxyfen per se. Drinking water estimates include surface water EECs based on the linked PRZM/EXAMS models and the SCI-GROW ground water regression model, which was developed from studies with different hydrology and study conditions. Both models assumed a maximum seasonal application rate of 0.11 lb ai/A, 3 times per year (citrus).

Based on the PRZM/EXAMS model the EECs of pyriproxyfen for surface water was estimated to be 2.15 parts per billion (ppb) for the peak concentration and 0.40 ppb for the long term average. Based on the SCI-GROW model, the EECs of pyriproxyfen for ground water was estimated to be 0.006 ppb for both the acute and chronic exposure.

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).

Pyriproxyfen is currently registered for use on the following residential non-dietary sites: Residential sites for flea and tick control products (home environment and pet treatments) as well as products for ant and roach control (indoor and outdoor applications). Formulations include carpet powders, foggers, aerosol sprays, liquids (shampoos, sprays, and pipettes), granules, bait (indoor and outdoor), and impregnated materials (pet collars).

There is a potential for short-term dermal and inhalation exposures to pet owners and homeowners who apply products containing pyriproxyfen (handlers); however, EPA did not select short-term dermal or inhalation endpoints. Therefore, no residential pet owner/homeowner handler assessment is included. However, a post-application toddler residential assessment is included since toddlers are anticipated to have higher exposures than adults from treated home environments and pets due to their behavior patterns.

Toddlers could potentially be exposed to pyriproxyfen residues on treated carpets, floors, furniture, and pets. Therefore, risk assessment was conducted using the following residential exposure assumptions:

i. Hand-to-mouth: Short-, intermediate, and long-term hand-to-mouth exposures by toddlers from treated carpets, flooring (note the efficacy of carpet powders is approximately 365 days).

ii. Hand-to-mouth: Short- and intermediate-term hand-to-mouth exposures by toddlers from petting treated animals (shampoos, sprays, spot-on treatments and collars). Long-term hand-to-mouth exposures by toddlers from petting treated animals (pet collars; note efficacy of pet collars up to 395 days).

iii. Dermal: Long-term dermal exposures from treated carpets, flooring, and pets (note that treated furniture is included in the carpet/flooring assessment). Since the Agency did not select any short- or intermediate-term dermal endpoints, no dermal assessment for these durations is included. A long-term dermal assessment is included, since EPA selected a long-term dermal endpoint.

iv. Ingestion of granules or bait by toddlers (acute, episodic event). For the granular ingestion scenario, it should be noted that the Agency believes that if a toddler were to be exposed to a pellet/granular formulation (i.e., ant bait), the event is most likely to be “episodic,” that is, a one time occurrence and not likely to be repeated. It is not likely that a toddler would repeatedly locate and ingest very small, sand colored granules. For pyriproxyfen, EPA did not select an acute dietary endpoint, since an appropriate endpoint could not be attributed to a single oral dose; therefore, no granular assessment was performed.

Exposure and risk estimates from post-application exposure to indoor crack and crevice treatments are not presented in this assessment as indoor broadcast treatments (i.e., carpet powders and sprays) are anticipated to have a higher exposure potential. Additionally, the Agency acknowledges that pet owners could retreat the home environment and/or the pet near the end of the efficacy period identified on the product labels. However, there are no chemical-specific residue data for pyriproxyfen to determine the dissipation rate of residues or whether residues may be additive upon retreatment. Therefore, a Tier 1 assessment was performed based on day 0 residues without accounting for daily residue dissipation. EPA anticipates that this assessment is protective as pyriproxyfen residues would be expected to dissipate from day 0 residue values.

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 pyriproxyfen 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, pyriproxyfen 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 pyriproxyfen 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 . Based on the available data, there is no quantitative and qualitative evidence of increased susceptibility observed following in utero pyriproxyfen exposure to rats and rabbits or following prenatal/postnatal exposure in the 2-generation reproduction study.

3. Conclusion . There is a complete toxicity data base for pyriproxyfen and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X safety factor to protect infants and children should be reduced to 1X because there was no evidence of prenatal or postnatal extra sensitivity or increased susceptibility in developmental studies in rats and rabbits, and in reproduction studies in rats. Likewise, there was no quantitative or qualitative evidence of increased susceptibility to rat or rabbit fetuses identified in the guideline prenatal developmental toxicity studies for rats and rabbits. Additionally, in the two non-guideline studies that evaluated perinatal and prenatal development, there was no evidence of quantitative or qualitative increased susceptibility. In one study, when pregnant rats were treated from gestation day 17 to lactation day 20, the resulting toxicity was comparable between adults (clinical signs, decreased body weight gain and food consumption) and offspring (decreased body weight and dilation of the renal pelvis) at the same dose. In the other study, when rats were exposed to pyriproxyfen prior to and in the early stages of pregnancy, no developmental toxicity was seen at the limit dose. Lastly, in the reproduction toxicity study, offspring toxicity (decreased body weight on pups during lactation days 14 to 21) occurred only in the presence of decreases in body weight in parental animals at the same dose level (i.e., comparable toxicity in adults and offspring).

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 . An acute dietary RfD for females 13-50 and the general U.S. population, including infants and children, was not selected because an acute oral endpoint attributable to a single-dose exposure could not be identified in the toxicology data base, including maternal toxicity in the developmental toxicity studies.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to pyriproxyfen from food will utilize 1.0% of the cPAD for the U.S. population, 2.0% of the cPAD for all infants, and 2.7% of the cPAD for children 1-6 years old. Based on the use pattern, chronic residential exposure to residues of pyriproxyfen is not expected. In addition, there is potential for chronic dietary exposure to pyriproxyfen 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 3:

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).

Pyriproxyfen is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for pyriproxyfen.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 29,000 for the U.S. population, 1,800 for all infants ( < 1 year old), and 1,700 for children (1-6 years old). These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of pyriproxyfen in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 4:

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).

Pyriproxyfen is currently registered for use(s) that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and intermediate-term exposures for pyriproxyfen.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 10,000 for the U.S. population, 650 for all infants ( < 1 year old), and 620 for children (1-6 years old). These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, intermediate-term DWLOCs were calculated and compared to the EECs for chronic exposure of pyriproxyfen in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect intermediate-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 5:

5. Aggregate cancer risk for U.S. population . The chronic toxicity of pyriproxyfen is based on the assessment of a combination (co-critical) of the 90-day rat feeding study and the 2-year rat feeding study. There was no evidence of carcinogenicity in a 78-week mouse feeding study and a 2-year rat feeding study. Pyriproxyfen was classified as a “Group E” chemical (no evidence of carcinogenicity to humans) by the Agency on June 22, 1995, based on the absence of evidence of carcinogenicity in male and female rats as well as in male and female mice.

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 pyriproxyfen residues.

In conjunction with the residue studies on guava, lychee, and blueberry, the petitioner submitted adequate concurrent recovery data for a gas chromatography/nitrogen-phosphorous detector (GC/NPD) method (RM-33P-1-3a) used to determine residues of pyriproxyfen in/on guava, lychee, and blueberry. The method has undergone an adequate radiovalidation, independent laboratory validation (ILV) trial, petition method validation (PMV) trial, and has been forwarded to the Food and Drug Administration (FDA) for inclusion in Pesticide Analytical Method (PAM) Vol. II. The GC/NPD method RM-33P-1-3a is adequate for enforcement of the recommended tolerance levels for residues of pyriproxyfen per se in/on guava, lychee, blueberry, and the related crops.

Adequate enforcement methodology (e.g., chromotography) is available to enforce the tolerance expression. The method may be requested from: Francis Griffith, Analytical Chemistry Branch, Environmental Science Center, Environmental Protection Agency, 701 Mapes Road, Fort George G. Mead, MD 20755-5350; telephone number (410) 305-2905; griffith.francis@epa.gov.

There are no Codex, Canadian, or Mexican maximum residue limits for residues of pyriproxyfen in/on guava, lychee, blueberry, or the related crops; therefore, international harmonization is not an issue at this time.

Therefore, the tolerances are established for residues of pyriproxyfen, 2-[1-methyl-2-(4-phenoxyphenoxy)ethoxypyridine, in or on acerola at 0.10 ppm, bushberry subgroup at 1.0 ppm, feijoa at 0.10 ppm, fruit, stone, group at 1.0 ppm, guava at 0.10 ppm, jaboticaba at 0.10 ppm, juneberry at 1.0 ppm, lingonberry at 1.0 ppm, longan at 0.30 ppm, lychee at 0.30 ppm, passionfruit at 0.10 ppm, pulasan at 0.30 ppm, rambutan at 0.30 ppm, salal at 1.0 ppm, spanish lime at 0.30 ppm, starfruit at 0.10 ppm, and wax jambu at 0.10 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-2002-0215 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 October 28, 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 (1900C), 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. 104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. 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 (703) 603-0061.

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-2002-0215, 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).

Section 9004 of RCRA authorizes EPA to approve State underground storage tank programs to operate in the State in lieu of the Federal underground storage tank (UST) program. To qualify for final authorization, a State's program must: (1) be “no less stringent” than the Federal program for the seven elements set forth at RCRA section 9004(a)(1) through (7); and (2) provide for adequate enforcement of compliance with UST standards of RCRA section 9004(a). Note that RCRA sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in States with programs approved by EPA under RCRA section 9004. Thus, EPA retains its authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved States. With respect to such an enforcement action, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State authorized analogues to these provisions.

On January 7, 1999, the State of South Carolina submitted an official application to obtain final program approval to administer the underground storage tank program for petroleum and hazardous substances. On January 29, 2002, EPA published a tentative decision announcing its intent to grant South Carolina final approval. Further background on the tentative decision to grant approval appears at 67 FR 4225, January 29, 2002.

Along with the tentative determination, EPA announced the availability of the application for public comment and the date of a public hearing on the application. EPA requested advance notice for testimony and reserved the right to cancel the public hearing for lack of public interest. Since there was no public request, the public hearing was cancelled. No public comments were received regarding EPA's approval of South Carolina's underground storage tank program.

The State of South Carolina is not approved to operate the underground storage tank program in Indian Country within the State's borders.

I conclude that the State of South Carolina's application for final program approval meets all of the statutory and regulatory requirements established by subtitle I of RCRA. Accordingly, South Carolina is granted final approval to operate its underground storage tank program for petroleum and hazardous substances. The State of South Carolina now has responsibility for managing all regulated underground storage tank facilities within its borders and carrying out all aspects of the underground storage tank program except with regard to Indian Country, where the EPA will retain regulatory authority. South Carolina also has primary enforcement responsibility, although EPA retains the right to conduct enforcement actions under section 9006 of RCRA.

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 a 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 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 potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. The UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary Federal program. South Carolina's participation in EPA's State program approval process under RCRA Subtitle I is voluntary. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may own and/or operate underground storage tanks, they are already subject to the regulatory requirements under the existing State requirements that EPA is now approving and, thus, are not subject to any additional significant or unique requirements by virtue of this action. Thus, the requirements of section 203 of the UMRA also do not apply to today's rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that own and/or operate underground storage tanks are already subject to the State underground storage tank requirements which EPA is now approving. This action merely approves for the purpose of RCRA section 9004 those existing State requirements.

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

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a State program.

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. South Carolina is not approved to implement the RCRA underground storage tank program in Indian Country. This action has no effect on the underground storage tank program that EPA implements in the Indian Country within the State. Thus, Executive Order 13175 does not apply to 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.” “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 section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local Governments, or EPA consults with State and local Officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has Federalism implications and that preempts state law unless the Agency consults with State and local Officials early in the process of developing the proposed regulation.

This action does not have Federalism implications. It 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, because it affects only one State. This action simply provides EPA approval of South Carolina's voluntary proposal for its State underground storage tank program to operate in lieu of the Federal underground storage tank program in that State. Thus, the requirements of section 6 of the Executive Order do not apply.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, § 12(d) (15 U.S.C. 272) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

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

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

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

The interim rule published in the Federal Register on April 29, 2002, at 67 FR 21062 became effective on June 28, 2002, except for revised 46 CFR 71.50-5(b), 71.50-23(b), 71.50-29(b), 71.50-31(b), 71.50-31(c), and 71.50-31(d)(1); 115.615(b), 115.630, 115.640(b), 115.655(a), 115.655(b), 115.660(c), and 115.660(d); 126.140(f), 126.140(g)(1), and 126.140(g)(3); 167.15-33(b) and 167.15-33(c); 169.230(b) and 169.230(c); 176.615(b), 176.615(c), 176.630, 176.640(b), 176.655(a), 176.660(b), 176.660(c), and 176.660(d)(1). These parts contained collection-of-information requirements. These parts could not become effective until its collection-of-information requirement was approved by the Office of Management and Budget (OMB). Those parts were approved by OMB in control no. 2115-0133 on June 24, 2002, and are effective August 28, 2002.

Currently, a carrier desiring to operate in interstate commerce must submit to FMCSA a Motor Carrier Identification Report (Form MCS-150). Additionally, for-hire applicants who are subject to 49 U.S.C. 13902 must apply for appropriate operating authority and make the necessary administrative filings as required by the ICC Termination Act of 1995 (ICCTA) [Pub. L. 104-88, 109 Stat. 803 (1995)].

Effective January 1, 2003, the agency will initiate its New Entrant Safety Assurance Process for all applicants to operate in interstate commerce. FMCSA announced this initiative in an interim final rule published in the May 13, 2002, Federal Reigster (67 FR 31978). Under the new entrant initiative, an applicant must additionally file a Safety Certification for Applications for U.S. DOT Number (Form MCS-150A) with the MCS-150 and the application for operating authority (if applicable).The applicant will be provided educational and technical assistance material to assist in complying with the FMCSRs and applicable Hazardous Materials Regulations (HMRs), and must certify that he/she is knowledgeable about, and will comply with, these regulations. This will help ensure that the carrier is knowledgeable about applicable Federal motor carrier safety standards before being granted “new entrant registration” that will continue for a minimum of 18 months. During the 18-month period, FMCSA will evaluate the new entrant's safety management practices through a safety audit and monitor its on-road performance prior to granting the new entrant permanent registration.

Once granted permanent registration, carriers continue to be subject to all Federal Motor Carrier Safety Regulations (FMCSRs) and operating requirements. Although the FMCSA makes every effort to help carriers comply with the FMCSRs and operating requirements, when necessary, the agency may apply a full range of enforcement actions to non-complying carriers. These include, but are not limited to, compliance reviews, civil penalties, and revocation of registration for serious safety violations.

On December 9, 1999, the President signed into law the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748) (MCSIA). Section 205 of MCSIA, which amended 49 U.S.C. 13902 by creating subsection (e), requires the agency to assess penalties for failure to comply with motor carrier registration requirements under 49 U.S.C. 13902. Specifically, if a motor carrier fails to register its operations or operates beyond the scope of its registration, the carrier would be subject to certain enforcement penalties. If, upon inspection or investigation, it is determined that a motor vehicle providing transportation requiring registration is operating without the carrier having registered with the agency or if that vehicle is being operated beyond the scope of such registration, the vehicle will not be allowed to continue to operate and will be placed out-of-service. The violating motor carrier may be subject to additional enforcement penalties. This interim final rule sets forth implementing regulations for section 205 of MCSIA.

Although FMCSA officials routinely conduct vehicle inspections at a carrier's place of business, agency employees are not authorized to stop commercial motor vehicles along the nation's highways to subject them to inspection. Instead, Federal officials partner with State personnel who are responsible for enforcing highway safety to compel selected commercial motor vehicles and their operators to undergo roadside inspections. Enforcement of the provisions in this interim final rule depends largely upon the ability to detect violators “in the act” along our nation's highways, and we will continue to rely largely upon assistance from State enforcement personnel.

The FMCSA administers a grant-in-aid program, the Motor Carrier Safety Assistance Program (MCSAP), as an incentive for State enforcement of motor carrier safety regulations. The MCSAP was first authorized in the Surface Transportation Assistance Act of 1982 (STAA)(Pub. L. 97-424, 96 Stat. 2079, 2154), reauthorized in the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 3207, 3207-186), in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (49 U.S.C. 31101-31104, as amended), and again in the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107). The original authorization contained certain eligibility requirements for financial assistance, including agreement to adopt and enforce safety regulations compatible with the FMCSRs and HMRs. The regulatory compatibility requirement remains today and ensures a permanent and consistent enforcement and safety presence throughout the nation. This interim final rule will make enforcement of the registration requirements a condition for continued eligibility for MCSAP funds.

Section 207 of the MCSIA amended 49 U.S.C. 31102(b)(1) by inserting new subparagraph (R), adding as a requirement of MCSAP participation, the “cooperation” of the States in the enforcement of registration requirements under 49 U.S.C. 13902 and the financial responsibility requirements of the Department. Subsequently, on March 21, 2000, the FMCSA revised the regulations for MCSAP participation (65 FR 15102). Those regulations required the States to enforce the registration and financial responsibility requirements.

All States are required, as a condition of receiving MCSAP funding (49 CFR 350.201), to adopt the FMCSRs contained in 49 CFR parts 390-397, as applicable. Adoption of the changes to 49 CFR 350.201(t), added the registration and insurance requirements found in 49 CFR parts 365 and 387. In a June 2001 policy statement, FMCSA guidance to the States interpreted the term “cooperation,” as used in section 207 of MCSIA, to merely require State enforcement to the extent each State's legislature authorized enforcement of the Federal registration and insurance requirements. The States could confirm their cooperation by certifying (in their MCSAP commercial vehicle safety plan) the following: “(t)he State of XXX will cooperate with the FMCSA, to the extent permissible by State law, in the enforcement of Federal requirements pertaining to registration and financial responsibility.” In order to restrict commercial highway transportation to those entities having the appropriate operating authority and possessing adequate insurance, we are now broadening our interpretation of the term “cooperation” found in section 207 of the MCSIA to specifically include placing out of service any vehicles discovered operating without 13902 registration or operating beyond the scope of their registration. As to the financial responsibility requirements in 49 CFR 350.201(t), the States must now take enforcement by assessing appropriate State penalties. We believe this expansion of our June 2001 policy statement is necessary in light of the heightened security environment in which we all live. Our previous policy statement could allow unregistered or improperly registered vehicles to travel our nation's highways unchecked. Given FMCSA's mission of ensuring safe transportation, it is incumbent upon the agency to close this potential loophole.

The FMCSA has also included 49 CFR part 365 (Rules Governing Applications for Operating Authority) to 49 CFR 350.201(t) as a condition of MCSAP funding. States are expected to notify the FMCSA when they have information on the fitness of an applicant for authority.

We believe that the registration requirements in this IFR are important to ensure that carriers are apprised of and compliant with applicable motor carrier safety standards.

We are adding new § 392.9a to require that a motor vehicle providing transportation requiring registration under 49 U.S.C. 13902 may not be operated unless the carrier has complied with registration requirements. Nor may a driver operate a motor vehicle providing transportation that requires section 13902 registration beyond the scope of that registration. For example, a motor carrier must register with the FMCSA to transport property in interstate commerce for hire. If Carrier A fails to register pursuant to section 13902, but is later discovered hauling appliances in a commercial motor vehicle for a department store from one State to another, under § 392.9a(b) Carrier A's CMV would be placed out of service and Carrier A may be subject to additional penalties. In another scenario, Carrier B registers to transport property for hire, but is later discovered operating a commuter bus service for a municipality using 49-passenger buses, the bus would be subject to an out-of-service order and the carrier may be subject to penalties.

In the second scenario in the preceding paragraph, Carrier B applied for and obtained authority to transport property for-hire. Carrier B met the registration requirements and his/her drivers are qualified to operate a truck, but Carrier B's drivers may know nothing at all about passenger transportation safety and are not qualified to transport passengers. Because Carrier B is registered with FMCSA, the chances of detecting Carrier B's illegal operations are much greater.

But in scenario one where Carrier A decides to go into business hauling furniture for a department store but fails to register with FMCSA, the agency would not even be aware of its existence unless one of the carrier's vehicles were stopped for roadside inspection. Because the carrier is not registered with the agency at all, that carrier would not be targeted for a compliance review. Roadside inspections would be the only means of detecting errant Carrier A.

Any vehicles found to be operating in violation of § 392.9a would be placed out-of-service, immediately prohibiting the driver from further operation. Furthermore, the motor carrier may be subject to further penalties under 49 U.S.C. 14901. The motor carrier would be entitled to a hearing to review the out-of-service order pursuant to 5 U.S.C. 554 within 10 days of the issuance of the order.

This rulemaking will become effective thirty days after publication because of the need to close a potential loophole that may be used to circumvent FMCSA's safety regulations. Given the heightened security environment, the time needed to complete notice and comment procedures prior to issuing an enforceable standard lengthens the time that individuals could exploit this loophole. FMCSA has asked for comment with publication of the rule, and will consider all comments received shortly thereafter. If changes to the rule are necessary to address this issue more effectively, or in a less burdensome but equally effective manner, FMCSA will not hesitate to make such changes. The Administrator for FMCSA believes that the circumstances described herein warrant quick action, and finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and contrary to the public interest.

The FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866. Accordingly, the Office of Management and Budget reviewed this regulatory action. In addition, this action is significant within the meaning of Department of Transportation regulatory policies and procedures (44 FR 11034, February 26, 1979). It is anticipated that the economic impact of the revisions in this rulemaking will be minimal.

This rulemaking has been reviewed by the Office of Management and Budget. It is significant within the meaning of the Executive Order and DOT's policies and procedures. Because of the potential security threat and the need to act quickly, no regulatory analysis or evaluation accompanies this rule. This rule may, however, impose some costs. FMCSA will assess the costs and benefits of the rule as soon as possible and will include the analysis in the docket of this matter.

The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement and Fairness Act (Pub. L. 104-121), requires Federal agencies to analyze the impact of rulemakings on small entities, unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Therefore, FMCSA certifies that this rule will not have a significant impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. Any agency promulgating a final rule likely to result in a Federal mandate requiring expenditures by a State, local, or tribal government or by the private sector of $100 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the Act. FMCSA has determined that the changes proposed in this rulemaking would not have an impact of $100 million or more in any one year.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (April 23, 1997, 62 FR 19885), requires that agencies issuing “economically significant” rules that also concern an environmental health or safety risk that an agency has reason to believe may disproportionately affect children must include an evaluation of the environmental health and safety effects of the regulation on children. Section 5 of Executive Order 13045 directs an agency to submit for a “covered regulatory action” an evaluation of its environmental health or safety effects on children. The agency has determined that this rule is not a “covered regulatory action” as defined under Executive Order 13045.

This rule is not economically significant under Executive Order 12866 because the FMCSA has determined that the changes in this rulemaking would not have an impact of $100 million or more in any one year. This rule also does not concern an environmental health risk or safety risk that would disproportionately affect children.

This rule would 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 has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999 (64 FR 43255, August 10, 1999). FMCSA has determined that this action would not have significant Federalism implications or limit the policymaking discretion of the States.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-3520], Federal agencies must determine whether requirements contained in rulemakings are subject to information collection provisions of the PRA and, if they are, obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor or require through regulations. FMCSA has determined that this regulation does not constitute an information collection within the scope or meaning of the PRA.

The Federal Motor Carrier Safety Administration (FMCSA) is a new administration within the Department of Transportation (DOT). The FMCSA analyzed this rule under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) (NEPA), the Council on Environmental Quality Regulations Implementing NEPA (40 CFR 1500-1508), and DOT Order 5610.1C, Procedures for Considering Environmental Impacts. This rule would be categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under paragraph 4.c.(3) of DOT's Order as a project amendment that does not significantly alter the environmental impact of the action. This rule would merely amend the Federal registration program to allow States and State law enforcement personnel to enforce the Federal registration requirements (49 U.S.C. 13902) by placing motor carriers out-of-service along our nation's highways for operating beyond the scope of their registration authority.

Section 203 of the Staggers Rail Act of 1980, codified at former 49 U.S.C. 10707a (1995), required the Interstate Commerce Commission (ICC) to publish a rail cost adjustment factor (RCAF) on at least a quarterly basis. The RCAF is an index intended to reflect the impact of inflation. Former section 10707a established a mechanism by which rail rates could be changed quickly to reflect changes in rail costs based on the RCAF while largely being insulated from shipper protest. 1 The ICC issued regulations, currently found at 49 CFR part 1135, implementing the statute.

Under the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995) (ICCTA), former section 10707a has been removed, although under new 49 U.S.C. 10708, the Board must still publish an RCAF at least quarterly. The ICCTA eliminated, however, the provisions of former section 10707a that allowed carriers to take increases based on the RCAF with limited rights of shipper challenge. Accordingly, we are revising the regulations in part 1135 to remove references to rate increases based on the RCAF.

We are also removing section 1137.2, concerning expeditious procedures for publishing separate rates for distinct services. These rules were based on former section 15(18) of the Interstate Commerce Act, enacted in the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act) and subsequently recodified at 49 U.S.C. 10728. Section 10728 was repealed by the ICCTA. At this time, we are not revising the regulations at 49 CFR 1137.1 involving divisions of revenues. This section was also issued in response to the enactment of the 4R Act. We will examine this regulation in a separate proceeding.

Because these changes remove and revise obsolete regulations based on statutory provisions that have been eliminated, we find good cause to dispense with notice and comment. See 5 U.S.C. 553(b)(B).

Copies of the decision may be purchased from Da-2-Da Legal Copy Service by calling 202-293-7776 (assistance for the hearing impaired is available through Federal Information Relay Service (FIRS) at 1-800-877-8339) or visiting Suite 405, 1925 K Street, NW., Washington, DC 20006.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

The specifications and management measures for the current fishing year (January 1—December 31, 2002) were initially published in the Federal Register as an emergency rule for January 1 - February 28, 2002 (67 FR 1540, January 11, 2002), as a proposed rule for all of 2002 (67 FR 1555, January 11, 2002), and as a final rule effective March 1, 2002 (67 FR 10490, March 7, 2002). The final rule was subsequently amended at 67 FR 15338, April 1, 2002; at 67 FR 18117, April 15, 2002; at 67 FR 30604, May 7, 2002; at 67 FR 40870, June 14, 2002; at 67 FR 44778, July 5, 2002; at 67 FR 48571, July 25, 2002; and at 67 FR 50835, August 6, 2002.

Trip limit adjustments published on July 5, 2002, contained technical errors and errors in the limited entry trawl trip limit table that require correction. The limited entry trawl trip limit table is corrected to close Pacific Ocean perch north of 40°10′ N. latitude (lat.) on September 1, 2002, as scheduled for all trawl fisheries north of 40°10′ N. lat. The whiting footnote for the “per trip” limit inside 100 fathoms in the Eureka area is also corrected to reflect the trawl closure north of 40°10′ N. lat. on September 1, 2002. At its June 17-21, 2002, meeting, the Pacific Fishery Management Council decided to close trawl fisheries north of 40°10′ N. lat. to protect several overfished species, including darkblotched rockfish. In addition, mid-water trawl limits for widow rockfish and yellowtail rockfish north of 40°10′ N. lat. are corrected to close on September 1, 2002. (Widow and yellowtail rockfish commonly co-occur with Pacific whiting). As a result, the mid-water trawl trip limits for widow and yellowtail rockfish were put in place to accommodate interception of these species by vessels fishing for whiting during the whiting primary season. Therefore, the widow and yellowtail rockfish mid-water trawl fisheries were essentially closed when the whiting primary season ended on July 17, 2002 (67 FR 47470, July 19, 2002). This document corrects the errors and re-publishes the limited entry trawl trip limit table.

In the rule FR Doc. 02-16811, in the issue of Friday, July 5, 2002 (67 FR 444778) make the following corrections:

1. On page 44781, in column 2, under NMFS Actions, the amendatory paragraph No. 1. is corrected to read as follows:

“1. On page 10511, in column 1, in section IV. under A. General Definitions and Provisions, paragraph 6(d) is revised to read as follows:”

2. On pages 44782—44783, Table 3 is corrected to read as follows:

This action corrects paragraph (3) of the definition of “eligible applicant” for a crab species license. This paragraph is designed to implement part of the LLP for the crab fisheries in the Bering Sea and Aleutian Islands. A final rule to implement the initial crab LLP was published on October 1, 1998 (63 FR 52642). As published in this rule, paragraph (3) incorrectly included the word “and” between “1993” and “1994” in the “eligible applicant” definition. This error incorrectly made the conditions for a certain crab species license more restrictive than intended by the North Pacific Fishery Management Council and NMFS and inconsistent with crab species license criteria specified at § 679.4(k)(5)(ii)(G). NMFS corrected this error on September 12, 2000 (65 FR 54971) (LLP Correction).

Subsequently, NMFS issued a final rule on December 14, 2000 (65 FR 78110) (Scallop Final Rule) to implement Amendment 4 to the Fishery Management Plan for the Scallop Fishery off Alaska, which created an LLP for the scallop fishery. The scallop final rule added clarifying subheadings to the numbered paragraphs within the definition of “eligible applicant” and in the process, repeated the regulatory text of each paragraph. The regulatory text repeated for paragraph (3), however, was the original incorrect text published on October 1, 1998, for the crab LLP. This mistake likely occurred because, with respect to paragraph (3), the scallop final rule relied on the text of the proposed rule for the scallop LLP which was published on April 21, 2000 (65 FR 21385), before the text was corrected nearly five months later on September 12, 2000. Therefore, this action re-corrects paragraph (3) to read as originally intended and corrected to read on September 12, 2000.

The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment under authority set forth in 5 U.S.C. 553(b)(B). The rationale for this finding is that prior notice and comment are unnecessary under the Administrative Procedure Act because the correction of this paragraph will have no substantive effect on the regulated public. Prior notice and comment would be contrary to the public interest because it would prolong the inaccurate paragraph that currently exists in the regulations and that had been previously corrected in the September 12, 2000, notice.

For reasons explained in the preamble, 50 CFR part 679 is corrected by making the following correcting amendment: