This rule is issued under Section 1308 of the Farm Security and Rural Investment Act of 2002 (Public Law 107-171), 7 U.S.C. 7958, hereinafter referred to as the “Act.”

This interim final rule has been determined to be non-significant for the purposes of Executive Order 12866 by the Office of Management and Budget (OMB) and therefore has not been reviewed by OMB.

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

There are no administrative procedures, which must be exhausted prior to any judicial challenge to the provisions of this rule.

This rule terminates Peanut Marketing Agreement No. 146 (7 CFR 998.1—998.61) and the rules and regulations (7 CFR 998.100—998.409) in effect under the Agreement on December 31, 2002, so that indemnification payments can be made on 2001 crop peanuts. This rule also terminates the companion regulations that apply to peanuts handled by persons not subject to the Agreement (7 CFR part 997) and to imported peanuts (7 CFR 999.600) effective September 10, 2002.

The Peanut Marketing Agreement No. 146 (7 CFR part 998) has been in effect since 1965 under the authority of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (AMAA). The Agreement was administered by the Peanut Administrative Committee (PAC), which was comprised of peanut handlers and producers appointed by USDA. Minimum quality regulations were applied to handlers who signed the Agreement. The Agreement covered peanuts produced in the three regional production areas in the United States. The Agreement also included authority for indemnification payments to signatory handlers on peanuts involved in product and appeals claims due to aflatoxin content. Reporting and recordkeeping requirements also were prescribed. Handlers paid assessments to the PAC to cover program administrative and indemnification costs.

Consistent with the requirements of the AMAA, comparable quality requirements were in effect for peanuts handled by persons not signatory to the Agreement (“non-signers”). The non-signer program (7 CFR part 997) was mandated in 1989 by Public Law 101-220, which amended the AMAA. The peanut import regulation has been authorized by section 108B(f)(2) of the Agricultural Act of 1949 (7 U.S.C. 1445c3), as amended in 1990 and 1993.

The non-signer regulations covered peanuts handled by persons not subject to the Agreement. The inspection and quality requirements were the same as those under the Agreement. Non-signer handlers had to pay the same administrative assessment rate as applied to signatory handlers under the Agreement.

The peanut import regulation required imported peanuts to meet the same quality and handling requirements as required under the Agreement. Imported peanuts were maintained under lot identification procedures and kept separate and apart from domestic peanuts until certified for human consumption use.

Under all three programs, failing peanuts could be reconditioned to meet edible requirements or disposed of in non-edible outlets. Safeguard provisions were included in the three programs to ensure that the Federal or Federal State Inspection Service (Inspection Service) sampled, inspected, and certified the quality of all peanut lots intended for edible consumption, and that chemical analyses were performed by USDA laboratories or laboratories approved by USDA.

The Act terminated the PAC effective July 1, 2002. This, in turn, requires terminating the Agreement and its implementing regulations. The companion regulations covering peanuts handled by persons not signatory to the Agreement and imported peanuts also are terminated. Assessments collected by the PAC under the Agreement and by USDA under the non-signer regulations ceased with 2001 crop peanuts.

Section 1308 of the Act requires that USDA take several actions with regard to peanuts marketed in the United States, effective with 2002 crop peanuts.

Mandatory Inspection: Paragraph (a) requires that all peanuts marketed in the United States (including imported peanuts) be officially inspected and graded by Federal or Federal-State inspectors.

Termination of the Peanut Administrative Committee: Paragraph (b) terminated the PAC effective July 1, 2002. As noted above, because the PAC was charged with daily oversight of the Agreement's regulatory program, termination of the PAC necessitates termination of the Agreement and its implementing regulations. The companion non-signer and peanut import regulations were based on regulations under the Agreement. Those regulations also are terminated.

Establishment of a Peanut Standards Board: Paragraph (c) provides for the establishment of a Peanut Standards Board (Board), and requires USDA to consult with the Board prior to establishing or changing quality and handling standards for domestically produced and imported peanuts. The Board is not subject to the Federal Advisory Committee Act. A transition period is designated to allow time for USDA to implement nomination procedures and select a Board, as prescribed under the Act.

USDA received nominations and applications from interested persons to serve on the Board. A Notice was published in the Federal Register on August 2, 2002 (67 FR 50409) and an application form was posted on the AMS Web site at: http://www.ams.usda.gov/fv/peanut-farmbill.htlm. Written nominations were received through September 3, 2002.

The Act also provides, in paragraph (g)(1) of section 1308, that during the transition period from the Agreement to the new program, USDA may designate persons serving as members of the PAC to serve as members of the Board, on an interim basis, for the purpose of carrying out the duties of the Board. USDA has established the interim Board and has consulted with the Board and Board officers on three occasions to establish the quality and handling standards specified in this program.

Maintaining wholesome quality peanuts: Paragraph (d) directs USDA to make identifying and combating the presence of all quality concerns related to peanuts a priority in the development of quality and handling standards for peanuts and in the inspection of domestically produced and imported peanuts. The Act directs USDA to consult with appropriate Federal and State agencies to provide adequate safeguards against all quality concerns related to peanuts. USDA notified State government Inspection Service supervisors of the proposed text on the internet and met with supervisors on July 29 and August 15, 2002. USDA also has contacted officials in the United States Customs Service (Customs Service) and the Food and Drug Administration (FDA) with regard to this new program.

Imported peanuts: Paragraph (e) provides that imported peanuts shall be subject to the same quality and handling standards as apply to domestically produced peanuts.

To maintain program continuity until the new peanut program could take effect, USDA continued the implementing regulations of the Agreement, and the non-signer and import regulations from July 1, 2002, until the effective date of this action. This action terminates the Agreement and the rules and regulations in effect under the Agreement on December 31, 2002, to allow payment of indemnification claims on 2001 crop peanuts. The peanut non-signer and import regulations are terminated on the effective date of this action. Assessments will not be collected and indemnification will not be paid on 2002 crop peanuts.

The provisions of this new program will apply to 2002 and subsequent crop year peanuts, to 2001 crop year peanuts not yet inspected, and to 2001 crop year failing peanuts that have not met disposition standards, and will continue in force and effect until modified, suspended, or terminated.

Pursuant to the Act, USDA has consulted with interim Board members in the development of the quality and handling standards established in this rulemaking. USDA coordinated a conference call with interim Board members on July 2, 2002. An initial draft text with reduced USDA oversight was prepared by USDA and distributed to the interim Board members prior to the conference call. The draft was reviewed and initial changes and comments were proposed. At the interim Board's direction, four interim Board officers met with USDA on July 17, 2002. Three of the four officers proposed several additional changes. A second draft text was prepared reflecting those proposed changes. That draft was again distributed to interim Board members and State supervisors of the Inspection Service and was discussed at a meeting in Atlanta, Georgia, on July 30, 2002. In addition to the 18-member interim Board, approximately 50 industry members and Inspection Service State supervisors attended the meeting. The revised draft text was thoroughly reviewed and several modifications were recommended. Quality standards which would allow purchase of Segregation 2 and 3 quality peanuts for processing for human consumption use and a change minimum kernel size were discussed by the interim Board. An implementation schedule also was discussed.

In addition to those meetings, USDA revised the draft text after the Atlanta meeting and posted it on the AMS website. Written comments were received from interim Board members after the meeting and a few comments were received in response to the posting of the draft standards text on the internet. Comments were accepted through August 12, 2002.

This rulemaking action establishes, under Part 996, peanut quality and handling standards similar to the quality and handling requirements that were in effect under USDA's three previous peanut programs, with certain changes. The changes, described in the following discussion, are based on interim Board and industry suggestions.

No restrictions on use of farmers stock peanuts: Previously, only farmers stock peanuts determined to be Segregation 1 quality peanuts could be acquired by handlers for preparation and disposition to human consumption outlets. Segregation 2 and 3 farmers stock peanuts were restricted to non-human consumption use such as seed, oilstock, animal feed, and birdseed.

This rule differs from the previous peanut programs in that handlers may purchase any segregation quality peanuts for shelling and eventual disposition to human consumption outlets, provided that such peanuts, after handling, meet the outgoing standards of this program. This change was recommended by several of the large peanut handling operations.

Some handlers on the interim Board stated that the prohibition on Segregation 2 and 3 peanuts for edible use is more than 35 years old and that modern technologies enable handlers to shell and mill failing quality peanuts of any segregation category. They stated that this will increase use of domestic peanut production for edible consumption without a loss in edible peanut quality. They also stated that raw, farmers stock peanuts produced in other countries are not subject to incoming quality requirements or restricted as to segregation levels in those countries. Thus, they believe, this change in the peanut program would place domestic handlers on an even playing field with shellers in other countries who might export to the United States peanuts shelled and handled from any quality raw peanuts.

At least one grower spoke in favor of removal of the restriction on use of Segregation 2 and 3 farmers stock only in non-edible outlets. Many growers have long contended that a single moldy peanut in a wagonload of farmers stock greatly reduces the value of the entire wagon and, thus, significantly reduces the grower's income. These growers see this as unfair and believe that they should be able to market their peanuts without a restriction on segregation use.

Under the new program, Segregation 3 peanuts with visible aflatoxin mold may now be purchased by handlers and imported by importers. Safeguard procedures remain in place to assure peanut quality and wholesomeness. The requirement that any farmers stock peanuts shelled and milled for human consumption use must be inspected and certified as meeting outgoing quality standards for grade and aflatoxin content prior to disposition for human consumption use is retained in this rule.

Storage of Segregation 2 and 3 farmers stock peanuts purchased by the handler is at the handler's discretion. Separate storage and shelling of Segregation 2 and 3 peanuts under the handler's ownership are no longer necessary because any peanuts intended for human consumption use must meet outgoing quality requirements before such use. Shelling of a handler's farmers stock peanuts and use of the handler's shelled peanuts also are at the handler's discretion, provided that any shelled peanuts which the handler disposes for human consumption use are inspected and certified for outgoing grade quality, as indicated in the table in § 996.31(a), and certified as negative to aflatoxin pursuant to a chemical analysis carried out by a USDA or USDA-approved laboratory. Positive lot identification (PLI) practices covered under § 996.40(a) must also be followed.

A handler may dispose of the handler's non-edible quality peanuts (sheller oilstock residuals) to such non-edible peanut uses as crushing into oil, or animal feed, or seed, pursuant to § 996.50. Disposition is at the handler's discretion provided that non-edible peanuts are moved under positive lot identification procedures and records documenting all such dispositions are maintained by the handler pursuant to § 996.71(b).

To the extent that farmers stock peanuts are imported, the importer has the same discretionary control over the storage, handling, and disposition of such peanuts.

Any storage or subsequent inspection that a handler may carry out for farmers stock peanuts held under USDA's Farm Service Agency's (FSA) loan program are subject to the provisions of the loan program.

Likewise, a handler may receive or acquire farmers stock peanuts or shelled peanuts from another handler and proceed to mill and prepare those peanuts for edible or non-edible use. Any contractual arrangements covering storage, shelling, milling, or disposition of such peanut lots are up to the two handlers. However, any peanuts intended for human consumption must be certified for such use pursuant to § 996.31(a).

This rule establishes the same outgoing quality standards for damage, defects, foreign material and moisture, and maximum allowable aflatoxin content as required under the previous peanut programs. The 15 parts-per-billion (ppb) maximum aflatoxin content is specified in the definition of the term “negative aflatoxin content” in § 996.11.

Direct blanching without prior inspection: Under the previous programs, all peanuts were required to be sampled and inspected for grade quality and aflatoxin content as the peanuts completed the shelling operation. The peanuts were also positive lot identified at that time and kept separate and apart from other milled lots. After the peanuts were moved to a blanching operation and blanched, a second sampling and grade inspection was conducted.

Under this program, handlers intending to blanch peanuts pursuant to a buyer's demand, may move peanuts from the handler's shelling facility to the handler's dedicated blanching facility without obtaining outgoing inspection and PLI prior to movement. Under this provision, the handler's blanching operation may not blanch peanuts belonging to other handlers. Movement of such peanuts under these conditions may be without grade inspection and PLI.

This change was recommended by interim Board handler members who have their own blanching facilities as a method of reducing handling and inspection costs and improving the efficiency of handling operations for peanuts that the handler intends to blanch. This change does not apply to peanuts sent to a custom blancher for blanching because those peanuts may be commingled with peanuts from another handler. To help safeguard against inadvertent commingling with another handler's peanuts, peanut lots sent to a custom blancher must be maintained under positive lot identity and be accompanied by a valid grade inspection certificate.

Because the peanuts are sampled and inspected for grade and aflatoxin content after completion of the blanching operation, and PLI is applied at that time, the outgoing quality and identity of the peanuts is not jeopardized.

Reporting farmers stock acquisitions: Because handlers and importers may now shell and mill Segregation 2 and 3 peanuts into edible quality peanuts, it is necessary that USDA account for all farmers stock peanuts acquired by handlers and importers. Reporting of farmers stock acquisitions is changed in this rule to require that all farmers stock acquisitions, regardless of segregation category, must be reported by the handler and importer to USDA. The Monthly Report of Acquisitions form is similar to the form previously used under the non-signer peanut program and to the PAC-1 filed by signatory handlers under the Agreement.

Reporting failing lots: Under the previous programs, non-signer handlers and importers were required to file with USDA copies of the outgoing grade and aflatoxin certificates on every peanut lot failing quality or aflatoxin standards. USDA used these certificates to monitor reconditioning and proper disposition of the failing lots. Under the Agreement, the Inspection Service and the aflatoxin laboratories filed with PAC, all grade and aflatoxin certificates on behalf of the signatory handlers.

Reporting procedures similar to those used under the Agreement are used for all handlers and importers in this new program. Thus, handlers and importers will not be required to file failing grade quality and aflatoxin certificates with USDA. These certificates will be filed by the Inspection Service and USDA and USDA-approved aflatoxin laboratories.

As previously discussed, USDA conducted a telephone conference call with interim Board members on July 2, 2002, and met with interim Board officers on July 17, 2002, and the full interim Board on July 30, 2002. Written comments from interim Board members and a few handlers not members of the interim Board were received throughout this period. Unless otherwise indicated, the comments addressed below were provided during the July 30 interim Board meeting.

Most interim Board members indicated that they did not seek radical or wholesale changes to the Agreement's regulations. This was apparent from the comments offered during the initial telephone conference call and at the July 30 interim Board meeting.

Some grower member representatives raised three general objections to establishment of new standards for the 2002 peanut crop. They believed that the new program should not be implemented if the 2002 crop harvest had begun. Because of geographical location, peanuts in south Texas and north Florida, representing a small portion of the total crop, were harvested before USDA could complete this rulemaking process. Because the new quality standards offer potential benefits to growers and handlers, some grower members believe that implementation after the 2002 crop harvest has begun is unfair to producers and handlers in those early-harvest areas.

Some interim Board members suggested that the greatest benefit to the program—purchase of Segregation 2 and 3 peanuts for possible edible use—would affect only a very small percentage of the early harvest peanuts, and that it may be possible to warehouse some of those farmers stock peanuts until the new standards become effective. Other interim Board members did not contest this assessment.

Section 1308 of the Act provides that its provisions take effect with the 2002 peanut crop. An alternative could be to continue the more restrictive 2001 regulations for the entire 2002 crop. However, USDA believes that implementation of the program as soon as possible after harvest begins is better than that alternative. The benefits of the new program to the entire industry are compelling. Most interim Board members believe that there should not be further delay in implementing this action. Only a small number of early harvest producers should be affected by the implementation date of this action. Further, storage accommodations can help alleviate any timing concerns.

The same interim Board members concerned about producer fairness also cautioned about making significant changes to incoming quality provisions without knowledge of changes being considered to the Marketing Assistance Program by USDA's Farm Service Agency. Pursuant to the Act, the FSA loan program also is being restructured, and the extent and nature of the loan provisions will not be known until after the quality and handling standards in this program become effective.

These members stated that the provision to allow purchase of Segregation 2 and 3 quality peanuts for edible consumption could affect the FSA loan program. They questioned details relating to the loan payments, inspection costs and storage of farmers stock peanuts placed under FSA's loan program. These questions are applicable to growers and will be addressed by FSA in that program. This action concerns the outgoing quality standards and handling procedures applicable to peanut handlers.

None of the definitions and other provisions addressed in this rule will be applicable to other peanut programs operated by USDA such as the loan and direct payment, counter-cyclical payments, and quota buyout payment programs provided for in the 2002 Act. Thus, for example, the definitions of “handle” and “handler” set out in this rule will have no application to those other programs, and will not govern eligibility for payments, or the kinds of payments that can be made, under those other programs. Rather, the definitions and other provisions implemented here were strictly developed for the limited purposes reflected in the rule and no other. The policy choices and any statutory interpretations involved reflect that limited purpose. FSA was consulted in that respect and assured that the understanding and intent was clearly that these rules would not in any way restrict policy determination made with respect to other programs. Rules for other peanut programs will be issued in due course. Further, references in this preamble to previous peanut programs is meant to refer to those peanut operations which were under the control of the Agricultural Marketing Service (AMS) and not those under the control of FSA or FSA's predecessor agency.

Written comments were received from a few independent handlers stating that not all handlers are able to remove all defective kernels, particularly in lots with concealed freeze damage or kernels with yellow pitting. Also, some operations do not have the latest technologies or their own dedicated blanching facilities to remove all kernels which contain aflatoxin.

Handlers will have to make decisions regarding the reconditioning of each failing lot. Those decisions are made on a lot-by-lot basis, based upon the grade factors identified in the lot's latest grade inspection or aflatoxin certificate. Handlers with the latest milling technologies or their own blanching operations may be better able to recondition failing lots than handlers without such equipment. Handlers are not prevented from remilling lots more than one time to remove defective or contaminated kernels. Custom blanching operations with current technologies are available to all handlers. If reconditioning operations are not successful, other handlers with such equipment could acquire the failing lots or recondition them on a contract basis. Because handlers are not prevented from reconditioning other handlers' failing lots, high quality standards can be established and maintained.

In the 1980's, Agreement regulations prohibited small kernels from use in edible consumption lots because research showed a higher incidence of aflatoxin in small peanuts. Research conducted at that time indicated that aflatoxin occurs more frequently in peanuts which are under stress during the growing season and that many peanut kernels are small because the plants were under such stress.

Some large handlers now contend that modern sorting technologies are able to remove the smaller, contaminated kernels and that end-product manufacturers now have markets for smaller whole kernels in snack foods and other edible products. The handlers recommend that the change would allow more domestically produced peanuts to be used in human consumption outlets and, thus, result in a more efficient use of total domestic peanut production. They also claim that foreign manufacturers of peanut products, such as peanut paste and peanut butter, are not under such minimum size restrictions for the manufactured product they export to the United States. They contend that relaxation in the size and shape of the holes in the screens used to sort out small kernels will allow domestic handlers and manufacturers to better compete with foreign product.

However, interim Board members representing regional grower associations oppose smaller kernel sizes for food quality and wholesomeness reasons. They believe that the risk of increased aflatoxin contamination in the smaller kernels outweighs the benefit of any incremental increase in the use of small peanut kernels, or cost savings accrued. Those opposed to use of small kernels contend that, in addition to having a higher incidence of aflatoxin, smaller kernels also may have a bitter taste. At the interim Board meeting, a representative from a peanut manufacturers' association said that manufacturers would oppose use of smaller size kernels.

The draft text which USDA posted on the Internet included the table displaying the amended screen sizes that would allow smaller kernels in edible lots. Written comments were received, most from interim Board members, opposing use of round hole screens and the smaller kernel size. Those comments cited concerns for wholesomeness and a loss of quality if smaller kernels were allowed in edible lots. Some suggested that the screen sizes should not be changed without further research on the increased risk of aflatoxin in small peanut kernels.

After review of the positions presented at the meeting and the written comments received, USDA believes that the kernel sizes specified under the previous peanut programs should continue in effect for the 2002 crop year. Therefore, the recommendation to change the minimum size standard is not accepted for 2002 crop peanuts.

An oilmill operator (crusher) filed a written comment that the mission of the new standards should be to ensure food safety and not to establish restrictions that increase costs and hinder trade between willing sellers and buyers. The oilmill operator suggested that: (1) Incoming inspection should not be required for farmer stock peanuts that the producer and handler/crusher know will be sent immediately to crushing; (2) shelled peanuts intended for non-edible use do not need to be positive lot identified; and (3) peanuts imported as non-edible specifically for crushing also should not have to be inspected before such disposition.

Incoming inspection is necessary to determine the value of any farmers stock peanuts. It is not likely that a producer will sell peanuts at low, oilstock prices without first obtaining inspection to ascertain whether the peanuts could be higher than oilstock quality. In addition, production data collected at incoming inspection continues to be used for loan data purposes and to develop daily crop reports which are helpful to peanut growers, handlers and manufacturers. This data would not be as helpful to all segments of the industry if it covered only high quality peanuts.

With regard to the commenter's second point, sheller oilstock residuals are positive lot identified with red tags to help prevent commingling in handling or storage and to assure buyers that certified edible lots are not mixed with lesser quality peanuts prior to shipment. Also, most crushing operations require certification of foreign material and moisture on milled peanuts.

With regard to the commenter's third point, to date, no peanuts have been imported specifically for crushing. Crushing is the least economical use of peanuts. It is not likely that importers would pay the international shipping costs and use limited duty-free import quota on peanuts suitable only for crushing.

This action removes a long standing Agreement provision (§ 998.200(c)(3)) which automatically imposed a small aflatoxin sampling and testing charge on buyers. The charge had been carried for several years under the Agreement and was supported by handler members on the interim Board. However, such service charges are matters that should be negotiated between sellers and buyers and, therefore, are not appropriate in these regulations.

Several additional changes have been made to the draft text posted on the Internet. These changes are based on further USDA review of the draft text and discussions with Inspection Service supervisors. These changes include re-instituting Agreement requirements that help USDA monitor disposition of sheller oilstock residuals, the movement of failing lots through the reconditioning processes, adjustments to positive lot identification procedures, and compliance oversight. A more thorough recordkeeping paragraph also was added to reflect current industry practice and the requirements of this program.

The outgoing quality and handling standards established under this rule are the same as, or similar to, the requirements under the previous peanut programs and are intended to maintain the peanut industry's high standards for peanut quality and wholesomeness.

The following categories of peanuts are subject to inspection requirements and quality and handling standards established under new Part 996.

Incoming quality—farmers stock peanuts: Under this program, all farmers stock peanuts received by handlers or importers must be sampled and inspected by Federal or Federal-State Inspection Service (Inspection Service) inspectors to determine the moisture content of the peanuts, the amount of foreign material in the peanuts, and the amount of damage and concealed damage in the peanuts. Moisture and foreign material content not exceeding 10.49 percent meet incoming quality standards—the same as under the previous peanut programs. The peanuts also are inspected for visible Aspergillis flavus mold.

Domestically produced farmers stock peanuts are required to undergo incoming inspection at a buying point prior to shelling or storage. Incoming quality standards are found in paragraph (a) of § 966.30. Incoming inspection is conducted by the Inspection Service to determine the general grade level of raw, farmers stock peanuts presented by the producer at buying points in the various domestic production areas. Peanuts are graded for foreign material, loose-shelled kernels, and moisture content. Segregation 1 farmers stock peanuts may contain 2 percent or less damaged kernels and 1 percent or less concealed damage caused by rancidity, mold, or decay. Segregation 2 peanuts are lesser quality peanuts containing more than 2 percent damaged kernels, or more than 1 percent concealed damage. Segregation 3 peanuts are those which contain visible Aspergillus flavus. Segregation 2 and 3 peanuts may be shelled and entered into human consumption outlets provided the peanuts meet outgoing quality and wholesomeness requirements. Imported farmers stock peanuts must be transported directly to a buying point and subjected to incoming inspection to determine Segregation quality.

It is the handler's option to keep farmers stock peanuts segregated by category or to commingle Segregation 1, 2 and 3 peanuts in the handler's warehouse. Domestically produced and imported farmers stock peanuts, however, must be kept separate and apart because imported peanuts are subject to Customs Service redelivery demands until the imported peanuts are certified as meeting outgoing quality requirements specified in § 996.31.

Incoming inspection determines the quality of the farmers stock peanuts based on moisture content, foreign material, damage, loose-shelled kernels, and visible Aspergillus flavus mold. Handlers and importers must report to USDA acquisitions of all Segregation 1, 2, and 3 farmers stock peanuts. The Inspection Service issues USDA Form FV-95, “Federal-State Inspection Service Notesheet” designating the lot as either Segregation 1, 2, or 3 quality. Reporting requirements are discussed in more detail below.

Because USDA cannot determine whether peanuts produced and milled in a foreign country originated from Segregation 1 quality peanuts, importers do not have to provide evidence of Segregation 1 quality for foreign peanuts imported in shelled or cleaned-inshell condition.

Outgoing quality—shelled peanuts: Both domestic and imported shelled peanuts must be sampled, inspected, and certified as meeting the outgoing grade standards specified in the table in § 996.31(a) entitled “Minimum Quality Standards B Peanuts for Human Consumption.” The table lists, for different peanut varieties, maximum percentage tolerances for damaged kernels; unshelled kernels and kernels with minor defects; split and broken kernels and sound whole kernels (size factors); foreign material, and moisture content. All categories and tolerances in the table are the same as those in effect under the Agreement at the time the PAC was terminated.

Each shelled peanut lot also must undergo chemical testing by a USDA laboratory or a private laboratory approved by USDA. AMS' Science and Technology Programs assures that all of the laboratories conducting chemical analyses follow the same testing procedures. The maximum allowable presence of aflatoxin is 15 parts per billion (ppb)—the same standard as required under the three previous peanut programs. This tolerance has been in effect for more than 15 years and was in effect at the time the PAC was terminated.

Once certified as meeting outgoing quality standards under § 996.31(a) for shelled peanuts, a lot may not be commingled with any lot that has failed outgoing quality standards or any residual peanuts from reconditioning operations.

Outgoing quality—Cleaned-inshell peanuts: Based on the changes in the edible use of Segregation 2 and 3 peanuts, cleaned-inshell peanuts are no longer restricted to Segregation 1 peanuts. Cleaned-inshell peanuts are farmers stock peanuts that are cleaned, sorted, and prepared for human consumption markets in the U.S. and must be inspected against minimum quality standards not exceeding 2 percent damage, 10 percent moisture, and 0.5 percent foreign material. Cleaned-inshell peanuts also may not exceed more than 1 percent mold unless the lot is also chemically tested and found “negative” as to aflatoxin. These standards are found in paragraph (b) of § 996.31.

Positive lot identification procedures are established under § 966.40. These are necessary to maintain identification of peanut lots and ensure that lots certified for edible consumption are not commingled with peanuts of lower quality. This section also establishes consistent procedures for collecting samples from peanut lots that are being inspected. Lot identification and sampling procedures must be applied consistently on all peanut lots undergoing inspection to ensure that all peanut lots are handled uniformly and lots once certified as meeting outgoing standards are maintained and shipped without loss of quality. PLI standards under this rule are the same as the positive lot identification requirements used by the Inspection Service in under the agreement, non-signer, and import peanut programs.

The Inspection Service works with domestic peanut handlers, importers, and storage warehouses to determine the most appropriate PLI or lot identity method to be used on individual peanut lots. Several factors dictate which PLI method should be used: (1) Size of the lot; (2) storage space on the dock or in the warehouse; (3) whether any further movement of the lot is required prior to certification; and (4) other needs of the handler, importer, dock or warehouse operators, or the Customs Service.

For domestic lots and repackaged import lots, PLI includes PLI stickers, tags or seals applied to each individual package or container in such a manner that is acceptable to the Inspection Service and maintains the identity of the lot. For imported lots, PLI tape may be used to wrap bags or boxes on pallets, PLI stickers may be used to cover the shrink-wrap overlap, doors may be sealed to isolate the lot, bags or boxes may be stenciled with a lot number, or any other means that is acceptable to the Inspection Service. The crop year or quota year shown on the positive lot identification tags shall be the year in which the peanuts in the lot were produced domestically or imported into the U.S., as appropriate.

PLI practices for both domestic and imported peanuts also include affixing a PLI seal to the door of a shipping container so that it cannot be opened without breaking the seal, and affixing a red tag on sewn bags of failing quality peanuts. Other methods acceptable to the Inspection Service that clearly identify the lot and prevent peanuts from being removed or added to the lot may be used. Any peanuts moved in bulk or bulk bins shall have their lot identity maintained by sealing the conveyance and, if in other containers, by other means acceptable to the Inspection Service. All lots of shelled or cleaned-inshell peanuts shall be handled, stored, and shipped under positive lot identification procedures.

The standard peanut lot size is 40,000 pounds, but may vary at the handler or buyer's preference. Lot size is limited to 200,000 pounds, which is the largest amount of peanuts that can be adequately sampled by the Inspection Service. The limitation was used under the agreement, non-signer, and import peanut programs.

Sampling procedures: This rule also establishes uniform sampling procedures and sample sizes that the Inspection Service follows when conducting grade inspections, and in collecting peanuts for chemical analysis. The portion of the peanuts collected for chemical analysis are sent to a USDA or USDA-approved laboratory. A portion of the peanuts sampled are held by the Inspection Service as check samples if the lot is determined to fail either grade or aflatoxin analysis. These procedures and sample sizes are the same as those used under the agreement, non-signer, and import peanut programs.

All required sampling and positive lot identification procedures are performed by inspectors of the Federal or Federal-State Inspection Service. Imported peanuts are subject to Customs Service redelivery demands if determined in violation of these quality or handling standards or Customs Service entry requirements referenced below. Handlers and importers must reimburse the Inspection Service and chemical laboratories for sampling and grade inspection and chemical analyses for aflatoxin. Incoming inspections range from $4.00 to $6.25 per ton of farmers stock peanuts. Sampling and outgoing grade inspections vary with each Federal-State Inspection Service and range from $1.50 to $3.00 a ton. Chemical analysis for aflatoxin averages $40.00 per analysis. The fee schedule for USDA laboratories appear at 7 CFR 91.37.

This program establishes procedures for importing peanuts into the United States that are similar to the procedures applied under the previous peanut import program (7 CFR 999.600).

U.S. Customs Service requirements: Importers of foreign produced peanuts must follow established Customs Service entry procedures and AMS stamp-and-fax notification and inspection procedures specified below. Customs Service importation procedures and requirements are set out in title 19 of the Code of Federal Regulations. The Customs Service regulations applicable to peanut handling and processing include, but are not be limited to: bond requirements (19 CFR part 113); transfer from port of entry to another Customs Service office location (19 CFR part 112); entry of merchandise for consumption (19 CFR part 141); warehouse entry, and withdrawal from warehouse for consumption (19 CFR part 144); establishment of bonded warehouses (19 CFR 19.13 and 19.2); manipulation in bonded warehouses (19 CFR 19.11); transfer of ownership (19 CFR 141.113 and 141.20); failure to recondition (19 CFR 113.62(e); and redelivery of merchandise (19 CFR 113.62(d)). For Customs Service purposes, the term “consumption” means “use in the United States.” Customs Service entry procedures are not superseded by the import procedures in this program.

It is the importer's responsibility to file import entry documentation and notify the Inspection Service with documentation sufficient to insure inspection of all imported peanut lots. It also is the importer's responsibility to account for disposition of all failing quality peanut lots imported by the importer. A bond secured by surety or U.S. Treasury obligations must be posted by the importer with the Customs Service to guarantee the importer's performance. For more information on these procedures importers should contact their importer broker, the Customs Service office at the port where peanuts are expected to be entered, or http://www.ustreas.gov/education/duties/bureaus/uscustoms.html.

Safeguard procedures: The safeguard procedures in this part are similar to those in the current import regulation and provide for monitoring of imported peanut lots from entry into the U.S. to final disposition. The safeguard procedures are similar to safeguard procedures already in place for peanuts and other imported fresh agricultural commodities and are consistent with the inspection, identification, and certification requirements applied to domestically produced peanuts.

To obtain information on importing peanuts or making arrangements for necessary inspection and certification, importers may contact the Fresh Products Branch headquarters office in Washington, DC, which will direct them to the closest regional inspection office. The telephone number of headquarters office is (202) 720-5870, and the fax number is (202) 720-0393.

Stamp-and-fax procedure: Under USDA safeguard procedures established in this program, the importer must provide advanced notice of inspection needs to the Inspection Service office that will collect samples of the peanuts for inspection. The importer must file completed entry documentation (Customs Service Form 3461 or other equivalent form) with the Inspection Service office by mail or facsimile transmission. To expedite entry procedures, the filing should occur prior to, or upon, arrival of the shipment at the port of entry. The Inspection Service office will stamp, sign, and date the entry document and return it to the importer or import broker by fax or mail. The importer/broker then submits the stamped copy to the Customs Service. This “stamp-and-fax” procedure is the same as the procedure currently in place under the import regulation and similar to procedures in place for other imported agricultural commodities under USDA jurisdiction. Failure to file with the Customs Service a copy of the entry documentation stamped by the Inspection Service may result in a delay or denial of entry by the Customs Service.

The importer must file a copy of each stamp-and-fax entry document with USDA and forward a copy, with any conditionally released lot, to the inland destination where the lot is to be inspected or warehoused. The importer must provide sufficient information to identify the peanut lot being entered and to ensure that arrangements are made for sampling and inspection. This information must include the Customs Service entry number, container identification, weight of the peanut lot, the city, street address, and building number (if known) receiving the peanut lot, the requested date and time of inspection, and a contact name and telephone number at the destination. If the destination is changed from that listed on the stamp-and-fax document, the importer must immediately advise Inspection Service offices at both the original destination and the new destination of such change. Shipments that are not made available pursuant to entry documentation, or are not properly displayed for sampling purposes, will be reported to the Customs Service as failing to follow required entry procedures.

Boatload shipments exceeding 200,000 pounds must be entered under two or more Customs Service entry documents. Lot size and identification arrangements must be made cooperatively between the importer, Inspection Service, and the Customs Service office at the port-of-entry. This facilitates subsequent lot identification, inspection, and reporting of large imported shipments.

Release for importation: Depending on condition (shelled or inshell) and containerization, foreign-produced peanuts may be either: (1) Held at the port-of-entry until certified by the Inspection Service as meeting the edible quality requirements of this rule; or, (2) conditionally released under Customs Service entry procedures and transported inland for inspection and certification.

Under option (1), foreign-produced shelled or cleaned-inshell peanuts which are held at the port-of-entry must be presented in containers or bags that allow appropriate sampling of the lot pursuant to Inspection Service requirements. After sampling, such lots are held at the port-of-entry under Customs Service custody, under positive lot identification requirements of the Inspection Service, pending results of the inspection and chemical analysis. If determined to meet the applicable edible quality requirements of this Part, the shelled or cleaned-inshell peanuts may be entered for consumption without further inspection. Reports of such entries do not have to be filed with USDA.

If a lot is held at the port of entry under Customs Service custody and subsequently determined to fail edible quality standards, the lot, at the importer's discretion, may be: exported; entered for reconditioning and if satisfactorily remilled or blanched, used for edible consumption; or entered for non-edible consumption. Such failing peanuts that are remain under Customs Service custody until exported do not have to be reported to USDA because the peanuts were not officially entered into the U.S. Failing lots that are conditionally released for reconditioning at a remilling or blanching facility inland must be reported to USDA. The importer is responsible for ensuring that such lots remain under PLI until reconditioned and determined to meet edible quality requirements. Disposition of residual peanuts to non-edible outlets also must be reported to USDA. Such reports must be submitted within the time frames discussed under Reporting and Recordkeeping Requirements, below.

Under option (2), foreign produced peanuts are conditionally released at the port of entry and transported inland for sampling, inspection, and certification. All imported farmers stock peanuts must be shipped inland for sampling and inspection because specialized sampling facilities at buying points are not available at ports of entry. All conditionally released lots must be maintained under PLI. Shelled and cleaned-inshell lots which are subsequently sampled and determined to meet both grade and aflatoxin quality standards may be entered directly into human consumption channels of commerce and not reported to USDA. Conditionally-released peanut lots failing to meet outgoing quality standards and their eventual disposition as edible or non-edible peanuts also are reported to USDA by the Inspection Service and/or the aflatoxin laboratory.

Peanuts transported from one port-of-entry to another port-of-entry must be transported by a carrier designated by the Customs Service under 19 U.S.C. 1551. Peanuts entered for warehousing must be stored in a Customs Service bonded warehouse. Such peanuts must remain in Customs Service custody until they are withdrawn from warehouse, entered for consumption, or released from Customs Service custody.

Peanuts entered for consumption, and peanuts withdrawn from warehouse for consumption, are released from Customs Service custody for edible or non-edible use. Release of peanuts, in both cases, is a conditional release, pending final certification that the peanuts conform to Customs Service entry requirements and meet the handling and quality standards of this program.

Peanut samples may be taken at the port-of-entry and shipped to an Inspection Service office with equipment and personnel qualified to a perform grade inspection. Imported shipments of farmers stock peanuts must be transported inland to a buying point where sampling equipment is available to conduct the sampling operation. In addition to grading the shelled peanuts against quality standards, the inspection office also sends samples from each lot to a USDA or USDA-approved laboratory for aflatoxin analysis. The laboratories must send copies of aflatoxin certificates to the USDA. Importers are required to maintain all records showing compliance with these standards and all Customs Service requirements.

Importers must not release failing lots for edible consumption until reconditioned and certified as meeting the standards of this program.

This rule establishes reporting and recordkeeping standards under § 996.71 that are necessary for USDA to monitor compliance with program quality and handling standards.

Farmers stock acquisitions: Handlers and importers are required to report to USDA the volume of Segregation 1, 2, and 3 farmers stock peanuts acquired from growers or others, or imported. Under the previous programs, the information was used, in part, to determine the assessment owed by signatory handlers to the PAC and non-signatory handlers to USDA.

Because all farmers stock peanuts can now be shelled for human consumption use, this rule establishes that all three categories of farmers stock must be reported. This information is used for compliance purposes and in the compilation of reports by USDA. The monthly report must include the volume, by variety, of Segregation 1, 2, and 3 farmers stock peanuts acquired in the preceding month. The storage location of the peanuts also must be reported. A form similar to USDA's FV-117 and the PAC-1 will be used by handlers and importers to report their monthly farmers stock acquisitions.

To collect farmers stock information, the interim Board recommended that USDA use the form submitted by handlers to the National Peanut Board, under the Peanut Promotion Research and Information Order (7 CFR part 1216), to determine handler assessments under the national Peanut Promotion and Research Program. However, the form previously used by the Board has been discontinued and the new “First Handler's Report” does not require disclosure of volume handled, peanut variety, or Segregation of the peanuts acquired. The form cannot be used for the purposes needed in this rulemaking.

The new form must be sent to USDA. Facsimile or express mail deliveries may be used to ensure timely receipt of certificates and other required documentation. Mail deliveries must be addressed to the DC Marketing Field Office, MOAB, FVP, AMS, USDA, 4700 River Road, Unit 155, Riverdale, MD 20737, Attn: Report of Peanuts. The Fax number is (301) 734-5275.

Falsification of any report submitted to USDA is a violation of Federal law and is punishable by fine or imprisonment, or both.

Documentation of edible and non-edible peanuts: This program continues the procedures used under the Agreement to monitor disposition of edible and failing quality peanuts. The Inspection Service sends copies of all grade inspections and the chemical laboratories send copies of all aflatoxin assays to USDA. USDA uses this information to monitor proper disposition of all lots failing either grade or aflatoxin certification.

This represents a relaxation of reporting requirements for importers. Under the previous peanut import program, non-signatory handlers and importers were required to file copies of all failing grade and aflatoxin certificates with AMS. They are no longer required to do so, unless specifically requested by USDA or unless the Customs Service demands such documentation of importers. These certificates will be provided by the Inspection Service, USDA laboratories, or certified USDA laboratories, as the case may be.

Recordkeeping: Handlers and importers are required to maintain all relevant documentation on the disposition of inedible peanuts. If remilled, blanched, or roasted, the handler or importer must maintain grade certificate(s) and/or aflatoxin certificate(s) showing that the lot has been reconditioned and subsequently meets outgoing, edible quality standards. Grade and aflatoxin inspections conducted on reconditioned lots reference the peanuts lot number and previous grade and aflatoxin certificate numbers so that a record of the lot's reconditioning is maintained. Documents showing the disposition of non-edible residuals (pick-outs etc.) must be maintained by each handler and importer. For example, if the lot is crushed for oil the oil mill's report of crushing must be maintained. That crushing report must tie the crushed residual peanuts to their original failing lots. If the failing lot is sold for seed or for animal feed, the sales receipt of the transaction must tie the purchased lot to the failing lot through the inspection certificate number. If the failing lot is exported, an export certificate must be filed showing the inspection certificate number of the failing peanut lot. Failing peanut lots sent to a landfill or buried also must be reported with proof of such disposition through the inspection certificate number.

In total, the documentation maintained and distributed to USDA must be sufficient to document and substantiate the proper disposition of all peanut lots failing grade or aflatoxin quality standards, as well as the residuals resulting from those failing lots.

Documentation on lot dispositions must be maintained for at least two years after the crop year of applicability.

This rule includes a confidentiality provision in § 996.72 to protect handler and importer reports and records required to be submitted to USDA under this action. Confidential information includes data or information constituting a trade secret or disclosing a trade position, financial condition, or business operations of handlers or their customers. Confidentiality provisions do not extend to disclosure of peanuts lots determined to be within the provisions in § 996.74(b).

Provisions are included in § 996.73 of this Part that allows USDA access to any premises where peanuts may be held or processed, and access to any business files containing information regarding the handling, importing, and disposition of peanuts. USDA, at any time during regular business hours, is permitted to inspect any peanuts held and any and all records with respect to the acquisition, holding, or disposition of any peanuts which may be held or which may have been disposed of by that handler or importer.

USDA will take action against any handler or importer in violation of the Act or this Part. Such action includes instances when a handler or importer: (1) Acquires farmers stock peanuts without official incoming inspection; (2) fails to obtain outgoing inspection on shelled or cleaned-inshell peanuts and ships such peanuts for human consumption use; (3) ships failing quality peanuts for human consumption use; (4) commingles failing quality peanuts with certified edible quality peanuts and ships the commingled lot for human consumption use; (5) fails to maintain PLI on peanut lots certified for human consumption use; (6) fails to maintain and provide access to records on the reconditioning or disposition of failing quality peanuts; or (7) otherwise violates any provisions of the Act or this program.

USDA will use injunctions to restrain violations and withdraw inspection services from alleged violators.

AMS will notify the FDA of the names of any handlers or importers known to have shipped un-inspected peanuts into human consumption channels and the lot numbers of such peanuts. AMS also will publish on the AMS Web site the names of any handler and importer and the failing lots not reported as reconditioned or disposed to non-edible outlets.

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

There were approximately 45 peanut handlers and 38 importers that were subject to regulation under the Agreement and non-signer program, and the peanut import regulation. An estimated two-thirds of the handlers and nearly all of the importers may be classified as small entities, based on the documents and reports received by USDA. Small agricultural service firms, which include handlers and importers, are defined by the Small Business Administration (13 CFR 121.201), as those having annual receipts of less than $5,000,000.

An approximation of the number of peanut farms that could be considered small agricultural businesses under the SBA definition (less than $750,000 in annual receipts from agricultural sales) can be obtained from the 1997 Agricultural Census, which is the most recent information on the number of farms categorized by size. There were 10,505 peanut farms with sales valued at less than $500,000 in 1997, representing 86 percent of the total number of peanut farms in the U.S. (12,221). Since the Agricultural Census does not use $750,000 in sales as a category, $500,000 in sales is the closest approximation. Assuming that most of the sales from those farms are attributable to peanuts, the percentage of small peanut farms in 1997 (less than $750,000 in sales) was likely a few percentage points higher than 86 percent, and may have shifted a few percentage points since then. Thus, the proportion of small peanut farms is likely to be between 80 and 90 percent.

Two-year average peanut production for the 2000 and 2001 crop years was 3.711 billion pounds, harvested from 1.363 million acres, yielding 2,723 pounds per acre. The average value of production for the two-year period was $948.777 million, as reported on the National Agricultural Statistics Service (NASS) Web site as of August 2002 ( http://www.nass.usda.gov:81/idepd/report.htm ). Average grower price over the two-year period was $0.26 per pound, and the average value per harvested acre was $707. Dividing the two-year average value of production ($948.177 million) by the estimated 12,221 farms yields an estimated revenue per farm of approximately $77,600.

The Agricultural Census presents farm sizes in ranges of acres, and median farm size in 1997 was between 50 and 99 acres. The median is the midpoint from the ranging from the largest to the smallest. Median farm size in terms of annual sales revenue was between $100,000 and $250,000.

Several producers may own a single farm jointly, or, conversely, a producer may own several farms. In the peanut industry, there is, on average, more than one producer per farm. Dividing the two-year average value of production of $948.777 million by an estimated 23,000 commercial producers (2002 Agricultural Statistics, USDA, Table 11-10) results in an estimate of average revenue per producer of approximately $41,251.

Oilmill operators, blanchers, and private chemical laboratories are subject to this rule to the extent that they must comply with reconditioning provisions under § 996.50 and reporting and recordkeeping requirements under § 996.71. There are several such entities in the peanut industry and these requirements are applied uniformly to these entities, whether large or small. In addition, there are currently 10 State inspection programs (FSIS) that will perform inspection under this new program.

Importers of peanuts cover a broad range of business entities, including fresh and processed food handlers and commodity brokers who buy agricultural products on behalf of others. Under the 2001 import quota, approximately 38 business entities imported approximately 126 million pounds of low duty peanuts (sometimes called “duty free” quota peanuts). The import quota period began January 2, 2001, for Mexico, and April 2, 2001, for Argentina, Israel, and other countries. Some large, corporate handlers are also importers of peanuts. AMS is not aware of any peanut producers who imported peanuts during any of the recent quota years. The majority of peanut importers have annual receipts under $5,000,000. Customs Service brokers provide import services to importers and are regulated under this rule to the extent that they must comply with entry requirements under § 996.60 and reporting and recordkeeping requirements under § 996.71. These requirements are not applied disproportionately to small customs service brokers.

In view of the foregoing, it can be concluded that the majority of peanut producers, handlers, and importers may be classified as small entities. In addition, it may be assumed that many oilmill operators and blanchers also are small entities.

The quality and handling requirements of the prior peanut quality programs have been in effect for more than 36 years and for imported peanuts for more than six years. Handlers and importers have been the segment of the industry directly regulated under the three peanut programs, and they are in general agreement that the industry has changed greatly since the establishment of the Agreement in 1965.

With only a few exceptions, the quality and handling standards in this peanut program are the same as, or similar to, the requirements previously in effect for domestically produced and imported peanuts. The few exceptions are relaxations in requirements that will benefit handlers and importers. These requirements were subject to regulatory flexibility analysis and were found to not disproportionately affect small entities.

The Act requires that all peanuts marketed in the United States be officially inspected and graded by Federal or Federal-State inspectors. The Act further requires that USDA make identifying and combating the presence of all quality concerns a priority in the development of quality and handling standards and in the inspection of all peanuts in the domestic market. Finally, USDA is to “* * * provide adequate safeguards against all quality concerns related to peanuts.” A new peanut program is to be established in consultation with the Peanut Standards Board. Currently, members of the PAC are acting in an interim capacity for the Board.

This program establishes under new Part 996 the minimum quality and handling standards that were in effect on May 13, 2002, the date the Act became effective, with a few relaxations recommended by interim Board members and a few peanut growers and handlers. Peanuts may not be entered into human consumption channels unless the peanuts are inspected and meet minimum quality standards for size, damage, defects, foreign material and moisture, and not exceed maximum aflatoxin content specified in this rule. Handling standards include the same positive lot identification, sampling and inspection procedures, and prohibitions on commingling certified and non-edible peanuts as were in effect under the three previous programs. Peanuts failing to meet the quality standards of this Part, or which are not handled consistent with the handling standards of this Part, may not be used for human consumption in the United States.

All USDA required sampling, quality certification, and lot identification is conducted by the Inspection Service. Chemical analysis is conducted by USDA or USDA-approved laboratories. Private laboratories must, among other things, agree to send copies of all aflatoxin analyses conducted by the laboratory to USDA. Foreign produced peanuts stored in bonded warehouses are subject to Customs Service audits. Handlers and importers must reimburse the Inspection Service and USDA laboratories and approved private laboratories, for services provided and costs incurred in the sampling, grade inspection and chemical analysis of peanuts. Incoming inspections range from $4.00 to $6.25 per ton of farmers stock peanuts. Sampling and outgoing grade inspections vary with the Federal and each Federal-State Inspection Service and range from $1.50 to $3.00 a ton. Chemical analysis for aflatoxin averages $40.00 per analysis. These costs to handlers and importers also were incurred under the previous three programs. Thus, there is no net increase in financial burden attributable to these aspects of the new program.

This action will impose on handlers and importers a minor reporting requirement in addition to that imposed under the previous peanut programs (reporting acquisitions of Segregation 2 and 3 farmers stock peanuts). However, importers and non-signatory handlers under the previous programs have a minor decrease in reporting requirements, because they are no longer required to submit evidence of disposition of failing lots. That task is completed by the USDA. Recordkeeping requirements remain the same as required under the three previous peanut programs. The information collection burden under the previous programs totaled 411 reporting hours and 269 recordkeeping hours. These were approved under OMB Nos. 0581-0067 (Agreement), 0581-0163 (non-signers), and 0581-0176 (imports).

Changes affecting regulated entities: Under this program, handlers are no longer subject to payment of assessments based on the volume of farmers stock peanuts acquired. Under the Agreement and non-signer program, handlers were assessed $.33 per net farmers stock ton of peanuts acquired. This totaled over $515,000 for the 2000 crop. Assessments collected from signatory handlers provided for the administration of the PAC. Assessments collected from non-signatory handlers helped reimburse USDA for administration of the non-signer program. There are no such assessments under the new peanut program.

The previous peanut programs prohibited the use of Segregation 2 and 3 farmers stock peanuts in human consumption channels, but this rule removes that prohibition. This will allow such peanuts to be handled and marketed in higher return outlets. Handlers sought this change. As noted above, handlers believe that modern milling technologies enable handlers to remove poor quality and contaminated peanut kernels in the shelling and milling operation. This change from the previous programs' requirements will enable more peanuts to be marketed at higher market values for human consumption. Segregation 2 and 3 peanuts, in a normal crop year, average around 1 percent of total production. Thus, for the 2000 and 2001 crop years, this would have allowed an additional 37 million pounds of farmers stock peanuts to be available for human consumption channels.

Handlers stated that peanuts used in the manufacturing of imported peanut butter and peanut paste are not restricted to Segregation 1 quality peanuts in those exporting countries. They contend that use of Segregation 2 and 3 quality peanuts for human consumption, after careful and efficient sorting and milling processes, levels the playing field for the U.S. peanut industry. Outgoing inspection will ensure that poor quality peanuts do not enter domestic edible consumption market channels.

Grower and handler revenues are likely to increase slightly due to the ability to sell Segregation 2 and 3 quality peanuts for human consumption use. This change is not expected to affect small and large entities differently.

If Segregation 2 and 3 peanuts are handled for human consumption, it is reasonable to assume that fewer poor quality peanuts will be available for crushing into oil and other non-edible use such as animal feed. It can be expected that the price of oilstock quality peanuts will rise slightly. A higher percentage of sheller oilstock residuals are likely to be sorted out of Segregation 2 and 3 peanuts during the initial shelling process. Therefore, not all of the peanuts in Segregation 2 and 3 lots will be edible, and the supply of oilstock peanuts will not be cut off completely. The market value of peanuts used for crushing into oil and added to animal feed could increase.

Further, blanching operations could realize an increase in business because blanching, as a last resort in reconditioning a failing lot, will likely be used in the final preparation of shelled peanuts originating from Segregation 2 and 3 peanuts for human consumption.

Finally, handlers with blanching facilities dedicated exclusively to the handler's own peanuts may move a lot of shelled peanuts directly from the shelling operation to their dedicated blanching operations without first obtaining grade inspection and PLI on the lot. Handlers recommended removing the required inspection and PLI prior to blanching at their own, dedicated facilities because the nature of the peanuts change in the blanching process and the peanuts must be inspected immediately after blanching, rendering the first inspection redundant. This would apply only to lots blanched in the handler's own blanching facility that does not blanch peanuts belonging to others, thus eliminating the need to establish PLI prior to blanching. This streamlined handling process will increase efficiency of the handling of peanuts that the handler intends to blanch. Handler costs for such lots are reduced by inspecting the lot once, rather than twice. While this change may tend to be most beneficial to those handlers who are mostly larger operations with their own, dedicated, blanching facilities, it should not have an adverse impact on small handlers.

Reporting and recordkeeping requirements under the new peanut program are not expected to adversely impact small businesses, and there is no indication that large and small businesses would be impacted differently. Under this program, handlers and importers must report monthly acquisitions of Segregation 2 and 3 peanuts—a minor increase from the previous programs when only Segregation 1 peanuts were reported. However, the benefits of being able to handle those peanuts for possible edible consumption outweigh the increased reporting requirement. Further, this minor increase in reporting is offset by a decrease in reporting disposition of failing peanut lots for non-signatory handlers and importers. In the case of imports, few, if any, peanuts are imported in farmers stock form because of the extra weight and bulk of the peanut shell. Thus, importers will likely not be filing a monthly report of acquisitions.

The other provisions in this peanut program are the same as, or similar to, the requirements in effect for domestically produced and imported peanuts for the last several years. Those requirements were subject to prior regulatory flexibility analysis.

USDA has considered alternatives to this program. The Act provides that a new program be established for the 2002 peanut crop. An alternative would be to continue the 2001 regulations for the entire 2002 crop. However, based on industry comment, implementation of a new program as soon as possible after harvest begins is preferable to continuing the previous programs. USDA has met with the interim Board which is representative of the industry and has included nearly all of its recommendations in this rule. The initial draft prepared by USDA proposed a streamlined program with less USDA oversight of handling standards. However, the interim Board suggested that oversight provisions in the previous programs be included in this program to assure the continued high quality and wholesomeness of peanuts entered into human consumption channels in the U.S. Draft provisions were posted on the USDA Web site and comments were received. Most comments confirmed the Board's consensus that significant changes in the previous programs were not desired. For instance, one proposal included changing screen sizes to allow smaller kernels to be included in lots intended for human consumption use. Comments advised against this relaxation and it is not included in this rule. Thus, this program is substantially the same as USDA's three previous peanut programs.

Except as previously discussed, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A small business guide on complying with AMS' fresh fruit, vegetable, and specialty crop programs similar to this peanut program may be viewed at the following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide or compliance with this program should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements under the Agreement, non-signers and import programs were approved by the Office of Management and Budget (OMB) and assigned OMB Nos. 0581-0067, 0581-0163 and 0581-0176, respectively. However, with the termination of those peanut programs, reporting and recordkeeping burdens on peanut handlers and importers were terminated. The burden under the three previous programs was 680 hours. The burden under the new program is estimated to be 463 hours. An estimated 367 hours (nearly 80 percent) of the new program burden is for recordkeeping, which handlers and importers would normally do under good business practice.

The Act specifies in § 1604(c)(2)(A) that any new quality and handling standards, established pursuant to the Act, may be implemented without regard to the Paperwork Reduction Act. Nonetheless, USDA has considered the reporting and recordkeeping burden on handlers and importers under the new program.

Handlers and importers are required to complete and file only one form—a monthly acquisition of farmers stock peanuts. Acquisitions of Segregation 2 and 3 peanuts must now be reported because those peanuts can be prepared for edible markets. Because Segregation 2 and 3 peanuts normally account for around 1 percent of each peanut crop, this change is expected to represent only a minor increase in the reporting burden under the new program. Non-signatory handlers and importers are no longer required to submit evidence of disposition of failing lots, which reduces their reporting burden. Recordkeeping requirements remain the same as required under the three previous peanut programs.

AMS invites comments on this interim final rule. Any comments received by October 9, 2002, will be considered prior to finalization. A 30-day comment period is deemed appropriate because § 1308 of the Act provides that the Act's requirements take effect with the 2002 crop of peanuts.

USDA has held several meetings with the interim Board, Inspection Service supervisors, posted a draft rule on the internet for comments, and considered all comments. The program is substantially the same as the three previous peanut programs. USDA also has reviewed this rule with FSA and provided drafts to the Customs Service and FDA. The 2002 crop harvest has already begun. Section 1601 also specifies that promulgation of the standards and administration of the new peanut quality program shall be made without regard to: (A) The Paperwork Reduction Act; (B) the Statement of Policy of the Secretary of Agriculture effective July 24, 1971 (36 FR 13804), relating to notices of proposed rulemaking and public participation in rulemaking; and (C) the notice and comment provisions of section 553 of title 5, United States Code.

Nonetheless, based upon the above, USDA may find, upon good cause, that it would be 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 . Further, with regard to the termination and removal of Parts 997, 998, and section 999.600, it is found that those programs no longer tend to effectuate the declared policy of the Agricultural Marketing Agreement Act of 1937, or the purposes of that Act.

A final rule airworthiness directive FR Doc. 02-21832 applicable to Pratt & Whitney JT8D series turbofan engines, was published in the Federal Register on August 28, 2002 (67 FR 55108). The following correction is needed:

A final rule; request for comments airworthiness directive FR DOC. 02-20679, applicable to Bombardier-Rotax GmbH type 912 F and 914 F series reciprocating engines, was published in the Federal Register on August 15, 2002 (67 FR 53296). The following correction is needed:

On page 53296, in the second column, in the DATES: section, “Effective September 16, 2002” is corrected to read “Effective August 30, 2002''.

On April 22, 1997, the FAA issued AD 97-09-02, Amendment 39-9998 (62 FR 23642), applicable to CFMI CFM56-5C series turbofan engines, to reduce the LCF retirement lives of certain HPTR front shafts, HPTR front air seals, booster spools, HPTR disks, and LPTR stage 3 disks. That action was prompted by results of a refined life analysis performed by the manufacturer which revealed minimum calculated LCF lives lower than published LCF retirement lives. This condition could result in LCF failure of certain HPTR front shafts, HPTR front air seals, HPTR disks, booster spools, and LPTR stage 3 disks, which could result in an uncontained engine failure and damage to the airplane. Since AD 97-09-02 was issued, the manufacturer conducted an extensive life management program for the LPTR stage 3 disks installed in CFM56-5C2/G and -5C3/G engines and HPTR disks installed in all CFM56-5C series engines. This consisted of a mission cycle based on field data, an updated 2D heat transfer and stress analysis, and a 3D finite element analysis. The results indicated higher LCF retirement lives for certain LPTR stage 3 disks and all HPTR disks than the lives published in AD 97-09-02. Therefore, this revision establishes new life limits for LPTR stage 3 disks part numbers (P/N's) 337-001-602-0 and 337-001-605-0 installed in CFM56-5C2/G and -5C3/G engines and HPTR disk P/N 1498M43P04 installed in all CFM56-5C series engines. Except for CFM56-5C4 engines, the LCF retirement lives for LPTR stage 3 disks part numbers (P/N's) 337-001-602-0 and 337-001-605-0 are now extended to 20,000 cycles-since-new (CSN) in Chapter 05 of the CFM56-5C Engine Shop Manual, CFMI-TP.SM.8. The LCF retirement lives for HPTR disk part number 1498M43P04 are now extended to 7,800 cycles-since-new (CSN) in Chapter 05 of the CFM56-5C Engine Shop Manual, CFMI-TP.SM.8. The cyclic lives of these LPTR stage 3 disks installed in CFM56-5C4 engines, and the cyclic lives of HPTR front shafts P/N's 1498M40P03, 1498M40P05, and 1498M40P06; HPTR front air seals, P/N's 1523M34P02 and 1523M34P03; and booster spools, P/N 337-005-210-0, remain unchanged.

Although these affected engine models are not used on any airplanes that are registered in the United States, the possibility exists these engine models could be used on airplanes that are registered in the United States in the future. This AD establishes new life limits for certain LPTR stage 3 disks and all HPTR disks listed in the existing AD.

Since there are currently no domestic operators of CFM56-5C series turbofan engines, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation.

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 should 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.

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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 95-ANE-64-AD.” The postcard will be date stamped and returned to the commenter.

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 .

The Union Pacific Railroad vertical lift drawbridge across the Ouachita River, mile 114.3, near Riverton, Caldwell Parish, Louisiana, has a vertical clearance of 7 feet above mean high water, elevation 71.0 feet NGVD, in the closed-to-navigation position and 57 feet above mean high water in the open-to-navigation position. Navigation on the waterway consists of tugs with tows and occasional recreational craft. Presently, the draw opens on signal for the passage of vessels.

The Union Pacific Railroad requested a temporary deviation for the operation of the drawbridge to accommodate the replacement of diesel-powered generators and to modify the gears in the driveline. This work is essential for continued operation of the draw span of the bridge.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

This document is organized according to the following Table of Contents.

The EPA is approving Chapter 138 as well as the air emissions licenses for Pioneer Plastics Corporation in Auburn; Dragon Products, Incorporated, in Thomaston; Tree Free Fiber Company, LLC, (formerly Statler Tissue) in Augusta; Mid-Maine Waste Action Corporation in Auburn; Maine Energy Recovery Company in Biddeford; Portsmouth Naval Shipyard in Kittery; S.D. Warren Company in Westbrook; FMC Corporation—Food Ingredients Division in Rockland; the Chinet Company in Waterville; Scott Paper Company in Winslow; and FPL Energy's (formerly Central Maine Power) W.F. Wyman Station in Yarmouth, as collectively meeting the CAA requirements for NO X RACT in the moderate nonattainment areas of Maine. This approval action will incorporate these documents into the Maine SIP.

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 November 8, 2002 without further notice unless the Agency receives relevant adverse comments by October 9, 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. All public comments received will then be addressed 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 no such comments are received, the public is advised that this rule will be effective on November 8, 2002 and no further action will be taken on the proposed rule.

The EPA is approving Maine's SIP submittals because they comply with EPA's NO X RACT related policies, including the “Nitrogen Oxides Supplement to the General Preamble” (57 FR 55620) and additional EPA guidance memoranda, such as those included in the “NO X Policy Document for the Clean Air Act of 1990,” (EPA-452/R-96-005, March 1996). Review of the NO X RACT SIP submittals, including Chapter 138, the miscellaneous NO X RACT determinations, the alternative NO X RACT determinations, as well as the licenses containing testing, monitoring, recordkeeping, and reporting requirements, indicate that Maine has sufficiently defined the NO X RACT requirements for major stationary sources of NO X located in York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Lincoln, and Knox counties in Maine. These seven counties make up the three areas of Maine classified as moderate nonattainment for the one-hour national ambient air quality standards for ozone.

The Clean Air Act (CAA) requires that States develop Reasonably Available Control Technology (RACT) regulations for all major stationary sources of NO X in areas classified as “moderate,” “serious,” “severe,” and “extreme” ozone nonattainment areas, and in all areas of the Ozone Transport Region (OTR). This requirement is established by sections 182(b)(2), 182(f), and 184(b) of the CAA as described below.

Section 182(b)(2) of the CAA requires States to require implementation of RACT with respect to all major sources of volatile organic compounds (VOCs) in moderate ozone nonattainment areas or in areas with higher than moderate nonattainment classifications as expeditiously as practicable but no later than May 31, 1995. Furthermore, section 182(f) states that, “the plan provisions required under this subpart for major stationary sources of volatile organic compounds shall also apply to major stationary sources (as defined in section 302 and subsections (c), (d), and (e) of the section) of oxides of nitrogen.” Additionally, section 184(b)(2) requires major stationary sources in the OTR, which includes all of Maine, to meet the requirements applicable to major sources as if the area is classified as a moderate nonattainment area (unless already classified at a higher nonattainment level) as well. These sections of the CAA, taken together, establish the requirements for Maine to submit a NO X RACT regulation which covers major sources statewide.

Section 302 of the CAA generally defines “major stationary source” as a facility or source of air pollution which has the potential to emit 100 tons per year or more of air pollution. This definition applies unless another provision of the CAA explicitly defines major source differently. For NO X , in marginal and moderate areas, and attainment areas in the OTR, a major source is one with the potential to emit 100 tons per year or more. Therefore, for purposes of applicability to NO X RACT in Maine, a major stationary source of NO X is a facility with the potential to emit 100 tons or more per year of NO X .

At the time of adoption of Chapter 138, Maine had four areas which were designated as ozone nonattainment: the Hancock and Waldo area, which was classified as marginal nonattainment; the Knox and Lincoln county area, which was classified as moderate nonattainment; the Lewiston-Auburn area, which was classified as moderate nonattainment; and, the Portland area, which was classified as moderate nonattainment (see 40 CFR Part 81 for the list of affected towns). On February 28, 1997, the EPA approved a request by the State of Maine to redesignate the Hancock and Waldo area from marginal nonattainment to attainment (62 FR 9081).

On December 26, 1995, EPA approved Maine's Chapter 138 NO X RACT rule as it applied to the Hancock and Waldo area as well as the other non-moderate counties in Maine ( i.e. , Oxford, Franklin, Somerset, Piscataquis, Penobscot, Washington, and Aroostook) that collectively make up the Northern Maine Area (see 60 FR 66748). The December 26, 1995, approval also included a NO X waiver under section 182(f) of the Clean Air Act. The waiver was limited in that it did not require anything above the Chapter 138 NO X RACT rule for the nine counties making up the northern Maine area at that time. Section 182(f) allows the Administrator to issue such a waiver upon making a determination that air quality benefits would be greater in the absence of NO X reductions from sources in a RACT subject area.

In today's action we are approving Chapter 138 as it applies in the three current moderate nonattainment areas: Knox and Lincoln area, Lewiston-Auburn area (Androscoggin and Kenebeck Counties) and Portland area (York, Cumberland and Sagadahoc Counties). With this action Chapter 138 will be approved statewide and, therefore, will meet requirements that Maine submit a NO X RACT regulation which covers major sources statewide.

On August 5, 1994, the State of Maine formally submitted Chapter 138 as a SIP revision. On July 1, 1997, Maine submitted case-specific NO X RACT determinations as single source SIP revisions for the following facilities: Pioneer Plastics Corporation in Auburn (Pioneer); Mid-Maine Waste Action Corporation in Auburn (MMWAC); Tree Free Fiber Company, LLC, (formerly Statler Tissue) in Augusta (TF/ST); Dragon Products, Incorporated in Thomaston (Dragon); and Maine Energy Recovery Company in Biddeford (MERC). On August 14, 1998, Maine submitted case-specific NO X RACT determinations as single source SIP revisions for the following facilities: FPL Energy's (formerly Central Maine Power) W.F. Wyman Station in Yarmouth (FPL); FMC Corporation—Food Ingredients Division's Rockland facility (FMC); Portsmouth Naval Shipyard (PSNY) in Kittery; the Chinet Company's Waterville facility (Chinet); Scott Paper Company's Winslow facility (Scott); and S.D. Warren Company's Westbrook facility (S.D. Warren). On October 9, 1997, Maine submitted an amendment to the case specific NO X RACT determination for PSNY in Kittery.

The following is a description of the Maine SIP revisions being approved in this action, including regulations and case-specific NO X RACT determinations. For a more detailed discussion of Maine's submittals and EPA's proposed action, the reader should refer to, “Technical Support Document—Maine NO X RACT in the Moderate Nonattainment Areas” (TSD), dated December 14, 1998. Copies of the TSD are found in the rulemaking docket (see Addresses ).

Chapter 138 of Maine's regulations contains five general sections. Section 1 deals with applicability and exemptions of facilities and equipment. In general, Chapter 138 applies to any existing stationary source that has potential to emit quantities of NO X emissions greater than or equal to 100 tons per year statewide. Subsections 1(A)(1) and (2) of the regulation further define the applicability of various control technology requirements for sources subject to Chapter 138 depending on the ozone nonattainment classification of their location.

Subsection 1(A)(1) states that, “[B]y May 31, 1995, any source located in any area designated by the Federal Government under 40 Code of Federal regulations, Part 81 as a moderate nonattainment area for ozone shall comply with the standards specified in Section 3.” Prior to May 31, 1995, EPA designated the following counties in Maine as moderate nonattainment: York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Lincoln, and Knox counties.

Section 1(A)(2) states that, “[B]y May 31, 1995, any source located in an area in the state that is not designated by the Federal Government under 40 Code of Federal Regulations, Part 81 as a moderate nonattainment area for ozone shall comply with the standards specified in Sections 3(A), 3(C)-3(O), and Section 4.” By May 31, 1995, the areas that were not designated as moderate areas in Maine included: Aroostook, Penobscot, Piscataquis, Washington, Somerset, Franklin, and Oxford counties, classified as attainment areas, as well as Hancock and Waldo counties, classified as marginal non-attainment areas. The reader should note that on December 26, 1995, EPA published a document in the Federal Register (60 FR 66748) approving Chapter 138, as it applies to the non-moderate areas of the State, into the Maine SIP.

Section 1(B) of the regulation contains provisions to exempt equipment and facilities where the NO X emitting equipment has the potential to emit less than 10 tons per year of NO X or where emergency standby engines operate for less than 500 hours during any consecutive 12 month period and the ignition timing is set and maintained at four degrees retarded to standard timing.

Section 2 of Chapter 138 contains a number of definitions. Several are particular to Maine's regulation and are not related to a federal requirement. These include: large boiler, small boiler, mid-size boiler, lime kiln, MgO recovery boiler, auxiliary/standby boiler, and kraft recovery boiler. Chapter 138 also contains definitions of several terms that have been defined in EPA regulations or guidance. These terms include: potential to emit, and, repowering project unit.

Section 3 defines NO X emission limitations, technology standards, or work practice standards for RACT subject sources. Section 3 sets NO X emission limitations for large boilers, i.e. , boilers with an energy input capacity of 1500 million Btu per hour (mmBtu/hr). These limits are set on a 24 hour basis and compliance must be demonstrated through the use of a continuous emissions monitoring system (CEMS).

Section 3 defines NO X emission limits or technology standards for mid-size boilers ( i.e. , boilers with energy input capacities greater than or equal to 50 mmBtu/hr but less than 1500 mmBtu/hr). Section 3 requires mid-size boilers with heat input capacities greater than 200 mmBtu/hour or greater to demonstrate compliance on a 24 hour block average basis through the use of continuous emission monitoring systems.

For small boilers ( i.e. , units with heat input capacities greater than 20 mmBtu/hour but less than 50 mmBtu/hour), section 3 of Chapter 138 requires that annual tune-ups be performed on the boilers. The regulations specify the types of records to be kept during the tune-up procedure as well as a requirement for the periodic verification of the parameter settings. Similarly, for auxiliary or standby boilers ( i.e. , boilers limited to less than 100 tons per year, 12 month rolling average, and 20 tons per month), section 3 defines RACT as the same annual tune-up and recordkeeping procedures for small boilers.

For kraft recovery boilers, magnesium oxide (MgO) recovery boilers, and lime kilns, section 3 of Chapter 138 sets NO X emission limitations. For the recovery boilers, the regulation requires compliance to be demonstrated on a 24 hour basis by a CEMS. For lime kilns, compliance is determined by stack testing. Section 3 of Chapter 138 sets NO X emission limits for refuse derived fuel (RDF) municipal solid waste (MSW) incinerators and mass burn MSW incinerators as well with compliance demonstrations on a 24 hour basis using a CEMS.

For NO X emitting units located at major stationary sources not covered by the specific standards of sections 3(A) through 3(G), i.e. , miscellaneous RACT sources, section 3 of Chapter 138 requires that the source conduct a RACT alternatives analysis. Section 3 also requires sources seeking alternative RACT determinations to submit an application to revise the facility's air emission license, including a description of the NO X emitting equipment at the facility, an examination of the technical and economic feasibility of various NO X control options, the option chosen, including emission limits, test methods, and means of assessing compliance, the amount of NO X to be reduced, and a schedule for implementation. In order for these determinations to satisfy the SIP requirements of the CAA, the RACT orders must be submitted and approved as case-specific SIP revisions.

Section 3 of Chapter 138 also allows sources to comply with alternative emission limitations through the seasonal combustion of different fuels ( i.e. , “fuel-switching”) or through the use of emissions averaging. Additionally, section 3 allows a facility to delay the installation of NO X controls on existing NO X emitting equipment in order to complete the dismantling and repowering of any of its equipment. In order to eligible for such “repowering” provisions,” the facility have an enforceable agreement with the DEP by January 1, 1995, committing them to shut down and repower the equipment by May 15, 1999. Furthermore, the replacement unit must have a BACT or LAER limit in place. The regulations contain a presumptive NO X RACT control requirement that units to be repowered perform annual tune-ups between March 15 and June 15 of each year, starting in 1995, until the new unit is in place.

Section 4 of Chapter 138 only applies to NO X sources in the non-moderate areas of the State. As noted above, EPA published a Federal Register notice on December 26, 1995, approving that section into the Maine SIP. Therefore, no further action is necessary for that section of Chapter 138.

Section 5 of the regulations include provisions for the submittal and approval of NO X RACT applications for facilities subject to section 3 of Chapter 138. These provisions also lay out the process by which DEP issues RACT orders, including the public comment process. Section 5 requires units to specify testing, monitoring, recordkeeping, and reporting procedures, which are subject to State and EPA approval as part of the RACT order application and issuance process. However, in order for the testing, monitoring, record keeping, and reporting requirements to be enforceable, as they apply to units for which Chapter 138 does not define such requirements, those requirements must be made part of final RACT orders in air emission licenses and subsequently submitted to EPA as SIP revisions.

Pioneer Plastics is a plastics manufacturing company with a facility which is subject to Chapter 138. The Pioneer Plastics' Auburn facility includes a thermal oxidizer unit (incinerator) used to destroy volatile organic compounds (VOCs) and hazardous air pollutants (HAPs). Chapter 138, section 3(H) requires owners of miscellaneous stationary sources to submit an analysis of NO X RACT options and for Maine to determine RACT for those sources on a case by case basis.

In its RACT analysis, Pioneer demonstrated that because the use of add-on NO X controls would reduce the destruction efficiency incinerator, those methods are considered technically infeasible as RACT options. Therefore, Maine issued air emissions licenses A-448-72-K-A/R and A-448-71-O-M, amendment #2, on August 23, 1995, and March 10, 1997, respectively, requiring annual inspection and repair of the duct work, including the seals of the doors of the unit, as well as of the burner components, as NO X RACT for this unit.

Pioneer also has a boiler, Boiler #6, which meets the Chapter 138 definition of a mid-size boiler. However, Pioneer applied for an alternative NO X RACT determination which examined a number of NO X control technologies for the boiler. As a result, Maine issued licenses A-448-72-K-A/R and A-448-71-O-M, amendment #2, which define alternative RACT as optimizing the boiler and using natural gas whenever available at the interruptible purchase rate (approximately 8 months of the year). The licenses were submitted to EPA as a SIP revision on July 1, 1997.

Dragon Products Company in Thomaston, Maine, (Dragon) has a cement making facility subject to Chapter 138. Chapter 138 does not define NO X RACT explicitly for cement kilns but rather section 3(H) requires owners of such miscellaneous stationary sources to submit an analysis of NO X RACT options from which Maine can define RACT on a case by case basis.

Dragon submitted an analysis of NO X controls to Maine which demonstrated that post combustion controls were not economically feasible. On June 5, 1996 and March 5, 1997, Maine issued air emission licenses A-326-72-N-A, amendment #5, and A-326-71-P-M, amendment #7, which require the implementation of a variety of combustion and process changes, including the installation of a low-NO X burner system. The license was submitted to EPA as a SIP revision on July 1, 1997.

Tree Free Fiber Company's facility in Augusta (formerly Statler Tissue) is subject to Chapter 138. Statler Tissue applied for alternative NO X RACT determinations for two of the mid-size boilers at the facility, Boilers #3, and #5. In their application, Statler analyzed a number of RACT options for boilers #3 and #5 but no option was shown to be economically feasible. Therefore, Maine DEP determined that for boilers #3 and #5, annual boiler tune-ups was RACT.

In February 1995, operations at the Statler Tissue (ST) facility were suspended. The property and licenses were transferred to Tree Free Fiber Company (TF). Subsequently, TF/ST requested several minor revisions to the air emission license for the facility. On June 12, 1996, the Maine DEP issued air emission license A-195-71-G-M which superseded a number of conditions found in the earlier license. For example, license A-195-71-G-M requires TF/ST to reevaluate the RACT alternatives within 6 months of the facility exceeding a capacity utilization threshold of 3,000,000 gallons on a 12 month rolling average basis of fuel oil burned. The license was submitted to EPA as a SIP revision on July 1, 1997.

Mid-Maine Waste Action Corporation (MMWAC) has a facility in Auburn, Maine which includes two refractory lined, mass-burn municipal waste combustors (MWCs) which are subject to Chapter 138, section 3(G). Mid-Maine Waste Action Corporation submitted a RACT application pursuant to Chapter 138, section (I) which examined a number of NO X control techniques. The NO X controls were found to be technically and economically infeasible. On October 16, 1996, Maine issued license A-378-72-E-A, Amendment #2 to MMWAC which was submitted to EPA as a SIP revision on July 1, 1997.

Maine Energy Recovery Company (MERC) has a facility in Biddeford, Maine which includes two refuse-derived fuel (RDF) boilers which are subject to the NO X RACT emissions limit in Chapter 138, section 3(F) for RDF units. In this case, the proposed alternative NO X RACT determination expresses the emission standard in another form and does not result in an increase in actual NO X emissions from the NO X RACT limit defined in Chapter 138. Therefore, it was not necessary that MERC analyze alternative NO X control systems. Air emissions license A-46-71-L-A was submitted to EPA as a SIP revision on July 1, 1997.

Portsmouth Naval Shipyard (PNSY) is subject to Chapter 138. The NO X emitting equipment at the Kittery facility include four boilers and eleven diesel fired internal combustion (IC) engines. PNSY has eleven IC engines which operate more than 500 hours per year. However, Chapter 138 does not define NO X RACT for engines that operate more than 500 hours. Therefore, these engines are considered miscellaneous stationary sources under Chapter 138, section 3(H). In February 1995, PNSY submitted to Maine a RACT analysis for the eleven engines which examined a variety of NO X reducing techniques. Of all the techniques studied, only the ignition timing retard was shown to be economically and technically feasible for the three air compressor engines. For the eight crane engines, however, a number of safety concerns make even the use of ignition timing retard technically infeasible as RACT.

The PNSY facility also has four boilers which are subject to Chapter 138, section 3(B). Chapter 138 section 3(I), however, allows owners of stationary sources at RACT subject facilities to apply for an alternative RACT determination. As part of its alternative NO X RACT application, PNSY examined a number of NO X control techniques prior to the time when each boiler will be converted to natural gas-firing.

On October 21, 1996, Maine DEP issued license A-452-71-D-A, amendment #2, to PNSY which contained a schedule to convert the four boilers to natural gas, requirements for the boilers to meet the interim equipment standards and emission limits, as well as requirements for the IC engines. On August 14, 1998, Maine submitted the license A-452-71-D-A, amendment #2, to EPA as a SIP revision. On July 25, 1997, Maine DEP issued license A-452-71-F-M, amendment #4, to PNSY in which a minor revision was made to include the boiler optimization procedures in the Order section of the license (they were previously listed in the “Findings of Fact” section). On October 9, 1997, Maine submitted the license A-452-71-F-M, amendment #4, to EPA as a SIP revision.

S.D. Warren Company (S.D. Warren) has a facility in Westbrook, Maine which is subject to Chapter 138. At the Westbrook facility, there are three boilers for which S.D. Warren has requested capacity limitations on Power Boiler #17 (PB 17), Power Boiler #18 (PB 18), and Power Boiler #20 (PB 20) in order to avoid triggering the requirement for the installation and operation of NO X continuous emission monitoring systems under Chapter 138, section 3(B). On June 12, 1996, Maine DEP issued S.D. Warren air emission license A-29-71-Y-A, amendment #13, which limits the firing capacities of each of these boilers.

Additionally, Chapter 138 does not define the testing, monitoring, recordkeeping, and reporting requirements for all emission units at facilities subject to the regulation. Therefore, on August 14, 1998, Maine submitted to EPA air emission license A-29-71-Y-A, amendment #13, which contains the additional monitoring, recordkeeping, and reporting requirements necessary to fully define RACT for the boilers at S.D. Warren. The license was submitted to EPA as a SIP revision on August 14, 1998.

The FMC Corporation—Food Ingredients Division's (FMC) Rockland facility is subject to Chapter 138. However, Chapter 138 does not define the testing, monitoring, recordkeeping, and reporting requirements for all the emission units at facilities subject to the regulation. Therefore, on February 7, 1996, Maine issued air emission license A-366-72-H-A, amendment #5, to FMC which defines additional testing, monitoring, recordkeeping, and reporting requirements for the three boilers. The license was submitted to EPA as a SIP revision on August 14, 1998.

Chinet Company's Waterville facility (Chinet) is subject to Chapter 138 of Maine's regulations. A number of boilers at the facility are subject to the NO X RACT requirements of section 3(L) for small boilers, including Boiler #1 and Boiler #4. However, Boilers #1 and #4 are rarely used. Therefore, Chinet has proposed that only if either of these boilers operates at a capacity factor of greater than 2%, must they comply with the requirements of section 3(L). If and when the threshold is exceeded, Chinet proposed to comply with the requirements of section 3(L) at both boilers within 90 days. On January 15, 1996, Maine issued air emission license A-416-72-B-A to Chinet formalizing the capacity trigger for Boilers #1 and #4, including the recordkeeping requirements.

Also, Chapter 138 does not define the testing, monitoring, recordkeeping, and reporting requirements for Boiler #5 at Chinet's Waterville facility. Therefore, on January 18, 1996, Maine issued air emission license A-416-72-B-A to Chinet which defines the testing, monitoring, recordkeeping, and reporting requirements for Boiler #5. The final license for Chinet was submitted to EPA as a SIP revision on August 14, 1998.

Scott Paper Company's Winslow Facility (Scott) is subject to Chapter 138. However, Chapter 138 does not define the testing, monitoring, recordkeeping, and reporting requirements for Boiler #1, Boiler #2, and Boiler #4 at Scott. Therefore, on November 15, 1995, Maine issued air emission license A-188-72-E-A, amendment #2, to Scott which defines additional testing, monitoring, recordkeeping, and reporting requirements for Boilers #1, #2, and #4. The license was submitted to EPA as a SIP revision on August 14, 1998.

FPL Energy's W.F. Wyman Station in Yarmouth (FPL) is subject to Chapter 138. However, Chapter 138 does not define the testing, monitoring, recordkeeping, and reporting requirements for Boiler #5. Therefore, on May 18, 1995, and February 16, 1996, Maine issued air emission license A-388-71-C-A, amendment #1, and A-388-71-D-M, amendment #1, respectively, to FPL which define additional testing, monitoring, recordkeeping, and reporting requirements for Boiler #5. The licenses were submitted to EPA as SIP revisions on August 14, 1998.

For large boilers, mid-size boilers with input capacities greater than 200 mmBtu/hour, kraft recovery boilers, MgO recovery boilers, mass burn and RDF incinerators, and units using emissions averaging for compliance, Chapter 138 requires the source to demonstrate compliance through the use of a NO X CEMS that satisfies the requirements of Chapter 117. Chapter 117 was first adopted by Maine on August 9, 1988 and approved it into the SIP on March 21, 1989. Chapter 117 contains the performance specifications, record keeping, reporting, and compliance schedule requirements for NO X sources.

On May 9, 1994, Maine revised Chapter 117 and submitted the adopted revisions to EPA on June 20, 1994. The revised Chapter 117 contains additional performance specifications, recordkeeping, reporting, compliance schedule, quality assurance/quality control, data availability, and compliance/enforcement requirements which apply to sources using a CEMS. The current, revised state version of Chapter 117 would apply to sources covered by Chapter 138. Through a separate rulemaking in the future the EPA will take action on the revised version Chapter 117.

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 November 8, 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).)

On March 23, 2001, the Commonwealth of Pennsylvania submitted formal revisions to its State Implementation Plan (SIP). These revisions apply to sources in Philadelphia County, Pennsylvania, subject to Air Management Regulation (AMR) XIII under the authority of 25 PA Code Chapter 127, “Construction, Modification, Reactivation and Operation of Sources,” to prevent and control air pollution from the emissions of SO 2 . The SIP revisions consist of four Operating Permits issued by the Philadelphia Department of Public Health, AMS, with authority under 25 PA Code Chapter 127, for four facilities in the County.

The EPA is approving as SIP revisions and incorporating by reference into the Pennsylvania SIP, four Operating Permits containing new SO 2 emission limits for four facilities located in Philadelphia County. The facilities are Trigen-Philadelphia Energy Corporation, Schuylkill Station, Grays Ferry Cogeneration Partnership, PECO Energy Company, Schuylkill Generating Station, and Sunoco, Inc. (R&M) Philadelphia Refinery. This action approves these Operating Permits into the SIP and makes them Federally-enforceable.

A modeling analysis for a Prevention of Significant Deterioration (PSD) permit for replacement boilers at the Philadelphia Naval Shipyard revealed potential exceedances of the 24-hour SO 2 National Ambient Air Quality Standards (NAAQS). Preliminary modeling indicated that these four sources at their existing allowable emission rates, were substantial contributors to violations of the NAAQS for SO 2 . The Philadelphia Department of Public Health, AMS, required each of the sources with significant contributions to the exceedances to re-evaluate their emissions and, if necessary, to define new emission limitations to ensure attainment and maintenance of the SO 2 standards. The PSD permit was issued to the Philadelphia Naval Shipyard in 1996 when it was determined that the facility did not have a significant contribution to the modeled exceedances.

With the authority under the Pennsylvania Code Title 25, Philadelphia Code Title III, and AMR XIII, AMS issued these permits to address the potential deficiencies of the Philadelphia portion of the Pennsylvania SIP. Three of the sources, Trigen-Philadelphia Energy Corporation, Schuylkill Station, Grays Ferry Cogeneration Partnership, and PECO Energy Company, Schuylkill Generating Station are at a common location in what is termed, the Philadelphia Energy Complex (PEC). The fourth source is the Sunoco Inc. (R&M) Philadelphia Refinery which includes a combined cycle project PSD analysis.

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

Each state must submit regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable SIP. Each state has a SIP designed to protect its air quality. These SIPs are extensive, containing regulations, enforceable emission limits, emission inventories, monitoring networks, and modeling demonstrations. The Pennsylvania SIP contains various permits to meet the SIP requirements and other state statutory requirements. The permits are developed to contain specific conditions for a particular source and can provide specific conditions such as, emission limits, hours of operation, recordkeeping requirements, production rates, compliance demonstration requirements, etc. Once properly issued, state-enforceable Operating Permits are approved by EPA as SIP revisions and are incorporated by reference into the SIP and become Federally-enforceable.

The CAA requires states to observe certain procedural requirements while developing SIP revisions for submission to and approval by EPA. Section 110(1) of the CAA requires that a revision to a SIP must be adopted by such state after reasonable notice and public hearing. The EPA must also determine whether a submittal is complete and warrants further action ( see section 110(k)(1) and 57 FR 13565). The EPA's completeness criteria for SIP revision submittals are found at 40 Code of Federal Regulations (CFR) part 51, appendix V.

Pennsylvania's March 23, 2001 submittal for Philadelphia County was determined to be administratively complete by EPA through a letter to the Director of PADEP, Bureau of Air Quality, dated July 17, 2001. The Commonwealth of Pennsylvania held a public hearing on this SIP revision on April 18, 2000. The SIP revision was then submitted by PADEP to EPA by cover letter dated March 23, 2001. The SIP revision demonstrates attainment of the SO 2 NAAQS in Philadelphia County, Pennsylvania.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the 40 CFR part 52. The actual state regulations and permits which are approved as SIP revisions are not reproduced in their entirety in the CFR but are “incorporated by reference,” with a specific effective date.

Sulfur dioxide belongs to the family of sulfur oxide gases. These gases are formed when fuel containing sulfur, such as coal and oil, is burned, and during metal smelting, and other industrial processes. Sulfur dioxide is a rapidly-diffusing reactive gas that is very soluble in water. Sulfur dioxide and oxides of nitrogen are the major precursors to acidic deposition (acid rain), and are associated with the acidification of lakes and streams, corrosion of buildings and monuments. They are also associated with reduced visibility. Sulfur dioxide in the Philadelphia area is emitted principally from combustion or processing of sulfur-containing fossil fuels and ores. At elevated concentrations, sulfur dioxide can adversely affect human health. The major health concerns associated with exposure to high concentrations of SO 2 include effects on breathing, respiratory illness, alterations in the lungs' defenses, and aggravation of existing cardiovascular disease. Sulfur dioxide can also produce damage to the foliage of trees and agricultural crops.

The primary NAAQS for sulfur oxides, measured as SO 2 , are 0.14 parts per million (ppm), or 365 micrograms per cubic meter (μg/m  3 ), averaged over a period of 24 hours and not to be exceeded more than once per year, and an annual standard of 0.030 ppm, or 80 μg/m  3 never to be exceeded. The secondary standard for SO 2 is 0.50 ppm, or 1300 μg/m  3 averaged over a three-hour period. The secondary standard may not be exceeded more than once per year.

1. The purpose of these revisions is to ensure the Federal-enforceability of Operating Permits entered between the City of Philadelphia, Department of Public Health, AMS, and four sources in Philadelphia County, Pennsylvania. The essential special compliance provisions of the four Operating Permits are presented below. Each Operating Permit also contains generic provisions requiring compliance with AMR III, the Control of Emission Oxides of Sulfur Compounds, as well as good air pollution control practices.

The Trigen-Philadelphia Energy Corporation, Schuylkill Station, operates a steam generating facility in Philadelphia, Pennsylvania. The SO 2 emission limits defined in the Operating Permit mandate that Boilers 23, 24, and 26, may not burn fuel oil that contains sulfur in excess of 0.5 percent by weight. Work practice standards require that no more than four of the following units can be operated at the same time: Boilers 23, 24, 25 and 26, and the Combustion Turbine/Heat Recovery Steam Generator (CT/HRSG). Boilers 23 or 24 can be operated at any load when only one unit is operating at a time. Boilers 23 and 24 are limited to 73.7 percent of full load when both units are operating simultaneously. Boilers 23, 24, 25, 26 and the CT/HRSG are to be operated in accordance with the stack and diameter parameters established in the dispersion model submitted to AMS on December 1, 1997.

Monitoring requirements stated in the permit require the facility to monitor the percent sulfur in each fuel oil upon delivery. In addition, an oil sample must be tested for each barge delivery and a daily composite tested for each truck delivery. Reporting requirements require any violation of an emission limitation to be reported (by phone call or facsimile transmission) to AMS within 24 hours of detection and followed by written notification within thirty-one (31) days. The facility must also submit to AMS semiannual reports of the performance of the facility using the City of Philadelphia Monitoring Report Form. These reports shall consist of a description of any deviations from permit requirements that occurred during the six-month reporting period, the probable cause of such deviations, and corrective actions or preventive measures taken.

The Grays Ferry Cogeneration Partnership owns and operates an electrical and steam generating facility in Philadelphia, Pennsylvania. The SO 2 emission limits defined in the Operating Permit mandate that the CT/HRSG and Boiler 25 may not burn fuel oil that contains sulfur in excess of 0.2 percent by weight. Work practice standards require that no more than four of the following units can be operated simultaneously: Boilers 23, 24, 25, 26 and the CT/HRSG. Boiler 23 or 24 can be operated at any load when only one unit is operating at a time. Boilers 23 and 24 are limited to 73.7 percent of full load when both units are operating simultaneously. Boilers 23, 24, 25, 26 and the CT/HRSG are to be operated in accordance with the stack and diameter parameters established in the dispersion model submitted to AMS on December 1, 1997.

Monitoring requirements defined in the permit require the facility to monitor the percent sulfur in each fuel oil upon delivery. In addition, an oil sample must be tested for each barge delivery and a daily composite tested for each truck delivery. The permit also mandates that the CT and HRS cannot be connected to FML02 (the fuel oil storage tank for the boilers). Reporting requirements require any violation of an emission limitation to be reported (by phone call or facsimile transmission) to AMS within 24 hours of detection and followed by written notification within thirty-one (31) days. The facility must also submit to AMS semiannual reports of the performance of the facility using the City of Philadelphia Monitoring Report Form. These reports shall consist of a description of any deviations from permit requirements that occurred during the six-month reporting period, the probably cause of such deviations, and the corrective actions or preventive measures taken.

PECO Energy Company owns and operates an electrical generation facility in Philadelphia, Pennsylvania. The SO 2 emission limits defined in the Operating Permit mandate that Boiler 1 may not burn fuel oil that contains sulfur in excess of 0.5 percent by weight. In addition, the CT #10 and #11 may not burn fuel oil that contains sulfur in excess of 0.09 percent by weight, and the emergency Diesel Generator may not burn fuel oil that contains sulfur in excess of 0.2 percent by weight. Work practice standards require that the facility operate its sources in accordance with the stack and diameter parameters established in the dispersion model submitted to AMS on December 1, 1997.

Monitoring requirements defined in the permit require the facility to monitor the percent sulfur in each fuel oil upon delivery. In addition, an oil sample must be tested for each #6 fuel oil delivery and a daily composite tested for each #2 fuel oil delivery. The CT cannot be connected to the fuel oil storage tank for the boilers or the Emergency Diesel Generator. The Operating Permit also states that the Emergency Diesel Generator can not be connected to the fuel oil storage tank for the boilers. Reporting requirements require any violation of an emission limitation to be reported (by phone call or facsimile transmission) to AMS within 24 hours of detection followed by written notification within thirty-one (31) days. The facility is required to submit to AMS semiannual reports of the performance of the facility using the City of Philadelphia Monitoring Report Form. These reports shall consist of a description of any deviations from permit requirements that occurred during the six-month reporting period, the probable cause of such deviations, and corrective actions or preventive measures taken.

Sunoco, Inc. (R&M) owns and operates a refinery in Philadelphia, Pennsylvania. The SO 2 emission limits defined in the Operating Permit mandate that the CO Boiler at Girard Point—CD-004 (the CO boiler at the 1232 FCCU) not exceed 500 parts per million dry volume (ppmvd) SO 2 at any time. In addition, the permit establishes an emission limit for the heaters and boilers at Girard Point of 0.53 lb. SO 2 /MMBTU and a rolling 365 day average emission limit of 0.33 lb.SO 2 /MMBTU.

The SO 2 emission limits for the sources at Point Breeze as defined in the Operating Permit, require that the C-129 (heater 8H101) not exceed 0.1 gr.H 2 S/dscf. In addition, the combined SO 2 emission rate from P-659 & P-660 (the Sulfur Recovery units) cannot exceed 31.72 lb./hour, and the SO 2 emission rate from P-661 (FCCU) cannot exceed 358 lb./hour. The permit also establishes emission limits for the boilers and heaters at Point Breeze of 0.034-0.53-lb.SO 2 /MMBTU and a rolling 365 day average emission limit of 0.33-0.034 lb.SO 2 /MMBTU. Work practice standards require that the facility operate its sources consistent with all parameters established in the dispersion model submitted to AMS on August 6, 1999. These parameters are explicitly defined in the Operating Permit. Monitoring requirements defined in the permit require that the facility monitor the process rates for sources P-661 (FCCU 868), P-659, and P-660 (SRU 867) on a daily basis. The facility must demonstrate compliance with the SO 2 emission limitations through use of Continuous Emission Monitors (CEM) in accordance with 25 PA Code Chapter 139 procedure. For all other combustion units excluding flares, the facility must monitor the fuel type and fuels usage for each combustion unit, boiler, process heater, etc., on a daily basis. The facility shall demonstrate compliance with the SO 2 emission limitations by monitoring the sulfur content of the fuel burned. For sources P-117 (the Flare for Unit 1231), P-118 (the Flare for Unit 1232), P-642 (North Flare), and P-643 (South Flare), the facility must monitor the fuel type and fuels usage and sulfur content of the fuel burned for each flare pilot on a daily basis. The facility must also monitor that the feed to the flares does not exceed the worst case scenario used in the modeling demonstration. The facility shall determine SO 2 emissions using the same analysis and calculations used in the modeling demonstration.

Reporting requirements require the facility to submit to AMS, the CEM report for SO 2 in accordance with 25 PA Code Chapter 139 procedure, quarterly. The report must contain, at a minimum, the date, time, duration, and magnitude of excess emissions; the reason for any excessive emissions; corrective action taken; for each day, the number of valid monitoring hours, the causes for any invalid monitoring hours contained in daily average and corrective actions taken; and the results of all quality control and quality assurance actions taken. The permit also requires the facility to submit to AMS, quarterly reports of the performance of the facility using the City of Philadelphia Monitoring Report Form. These reports shall consist of a description of any deviations from permit requirements that occurred during the three-month reporting period; the probable cause of such deviations, and corrective actions or preventive measures taken; a description of any malfunction of processes, air pollution control equipment, or monitoring equipment that occurred during the three month reporting period; the date and duration of the incidents; the probable cause of the incidents, and actions taken to remediate such incidents; a description of any sources which have not operated in more than one year; and annual compliance certification.

2. Two dispersion modeling analyses are included with the SIP submittal, each of which uses the Industrial Source Complex—Short Term (ISCST) model specified as preferred in appendix W to 40 CFR part 51 (Guideline on Air Quality Models). One analysis is for the PEC. The second analysis is for the combined cycle energy project at the Sunoco Refinery.

The final dispersion modeling, based upon current SIP allowable SO 2 emission limits and the SO 2 emission limits of sources amended through Operating Permits, demonstrate that the maximum SO 2 impacts  1 do not violate the SO 2 NAAQS. The modeled impacts, including background concentrations are as follows:

All documents relevant to this rulemaking have been placed in Docket A-94-60 in EPA's Air Docket. The Air Docket is located at 1200 Pennsylvania Avenue, NW., 20460, in room B-102, Mail Code 6102T and is open between the hours of 8:30 am and 4:30 pm, Monday through Friday. A reasonable fee may be charged for copying. EPA is also publishing a response to comments document (entitled “Response to Comments: Amendment to Radionuclide NESHAPs-40 CFR Part 61, Subpart H and Subpart I” (Docket No. A-94-60, Item V-A-2)), which responds in detail to all the public comments that were received on the proposed rule. Copies of the response to comments document may be obtained from Eleanor Thornton-Jones at the U.S. Environmental Protection Agency, Center for Waste Management, Radiation Protection Division, Office of Radiation and Indoor Air, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0001; Mail code: 6608J or by e-mail: thornton.eleanord@epa.gov or by phone (202) 564-9773.

All subject facilities must demonstrate compliance with subparts H and I in accordance with the procedures set forth in ANSI/HPS N13.1-1999, “Sampling and Monitoring Releases of Airborne Radioactive Substances from the Stacks and Ducts of Nuclear Facilities' (Docket No. A-94-60, Item II-D-3). The Health Physics Society (HPS) approved ANSI/HPS N13.1-1999 on January 12, 1999, and published it as a supplement to the May 1999 Health Physics Society Journal. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. You may obtain a copy of the ANSI/HPS N13.1-1999 standard from the American National Standards Institute, 25 West 43rd Street, 4th Floor, New York, New York 10036. You may inspect a copy at EPA's Air Docket (address above), or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.

This rule applies to operations at any facility owned or operated by DOE that emits any radionuclide other than radon-222 and radon-220 into the air (radionuclide NESHAPs—40 CFR part 61, subpart H) and to non-DOE federal facilities (radionuclide NESHAPs—40 CFR part 61, subpart I).

The NESHAPs regulations at 40 CFR part 61, subparts H and I require emissions sampling, monitoring and calculations to identify compliance with the standard. The standard for both subparts H and I requires that emissions of radionuclides to the ambient air shall not exceed those amounts that would cause any member of the public to receive in any year an effective dose equivalent of 10 mrem/yr. Also, for non-DOE federal facilities, emissions of iodine shall not exceed those amounts that would cause any member of the public to receive in any year an effective dose equivalent of 3 mrem/yr. Under radionuclide NESHAPs, major sources are those that have the potential to discharge radionuclides into the air in quantities that could cause an effective dose equivalent in excess of 0.1 mrem/yr.

Currently, for major sources, subparts H and I require measurement of radionuclide emissions to air in accordance with the guidance presented in the ANSI “Guide to Sampling Airborne Radioactive Materials in Nuclear Facilities,” ANSI N13.1-1969 (Docket No. A-94-60, Item II-D-1). The American National Standards Institute substantively revised ANSI N13.1-1969 in 1999, and renamed it “Sampling and Monitoring Releases of Airborne Radioactive Substances from the Stacks and Ducts of Nuclear Facilities,” ANSI/HPS N13.1-1999 (Docket No. A-94-60, Item II-D-3).

With today's action, EPA amends 40 CFR part 61, subparts H and I to require the use of ANSI/HPS N13.1-1999 in place of the older ANSI N13.1-1969 for all applicable newly constructed or modified facilities. The principal feature of ANSI/HPS N13.1-1999 is that it is a performance-based standard, rather than a prescriptive standard, as was ANSI N13.1-1969. As a performance-based standard, ANSI/HPS N13.1-1999 provides guidance for the design and use of systems for sampling the releases of airborne radioactive substances from the ducts and stacks of nuclear facilities. The ANSI/HPS N13.1-1999 standard includes the following features:

• Criteria for determining suitability of a sampling location based on the uniformity of the velocity and contaminant concentration profiles,

• A criterion for an acceptable level of flow swirl,

• A maximum relative level of contaminant at any location across the cross section of the stack or duct,

• Performance criteria for an acceptable probe,

• A numerical criterion on the minimum fraction of aerosol particles that penetrate the sampling system from the stack gas to the collector or analyzer,

• A statement that the number of bends in the sample transport line must be minimized,

• Periodic checks and maintenance criteria, and

• A quality assurance program that covers personnel, equipment, and data handling.

In developing the final rule, EPA considered all information that was before the Agency. EPA gave substantial consideration to all the public comments (both written and oral) submitted at a public hearing and during the comment period on the proposed rule. EPA also sought and considered additional information related to several issues raised by commenters. EPA has based its regulatory decisions on the information obtained and comments received during the rulemaking process. Thus, today's final action does three things:

(1) The final amendment to subpart H and subpart I requires the use of the ANSI/HPS N13.1-1999 standard for new sources as defined in 40 CFR part 61, subpart A. Facilities will be required to use ANSI/HPS N13.1-1999 for the reporting period beginning January 1, 2003.

(2) The final rule also provides the option of using ANSI/HPS N13.1-1999 for existing sources. EPA believes that some existing sources not undergoing modification could benefit from upgrades that would be necessary to meet the ANSI/HPS N13.1-1999 standard. In those instances, EPA encourages all applicable Federal facilities to make such necessary upgrades to meet ANSI/HPS N13.1-1999.

(3) The final rule also includes more stringent inspection requirements for facilities that will remain subject to ANSI N13.1-1969. EPA is amending 40 CFR part 61, Appendix B, Method 114—Test Methods for Measuring Radionuclide Emissions from Stationary Sources to impose these more stringent inspection requirements. (Both subparts H and I require applicable sources to implement the Quality Assurance Methods in Appendix B, Method 114 when conducting a quality assurance assessment.) These requirements will ensure that existing sampling systems are regularly inspected and continue to function as designed. The new inspection requirements are based on similar guidelines found in ANSI/HPS N13.1-1999. Incorporating updated requirements into Appendix B, Method 114 ensures that key components of the sampling systems are inspected at least on an annual basis to prevent degradation of sampling systems.

Significant comments on the proposed rule are discussed in the preamble section entitled “Discussion of Comments.”

The Agency estimated the cost impacts resulting from the amendments to 40 CFR part 61 subparts H and I being promulgated today. These costs derive from (1) Any incremental costs to new facilities from the adoption of the newer ANSI/HPS N13.1-1999 standard instead of the older ANSI N13.1-1969 standard; (2) costs incurred by existing facilities undergoing modification from the upgrading of their sampling systems; and (3) the costs incurred by facilities to meet additional inspection requirements.

In general, the cost for new facilities installing a sampling system compliant with the newer ANSI/HPS N13.1-1999 standard is the same as the cost of installing a system compliant with the older ANSI N13.1-1969. Therefore, although DOE estimates that, over the next 5 years, approximately 50 new sources will be constructed, these facilities will face no additional costs associated with the adoption of ANSI/HPS N13.1-1999 as required in today's amendments (Docket No. A-94-60, Item IV-G-4).

For those facilities undergoing modification, there will be a cost associated with upgrading their sampling systems. As discussed further in Section II.B. of this preamble, this cost is estimated at $100,000 per source. The Department of Defense (DoD) stated that nearly all of their existing sources and probably future sources will result in an effective dose equivalent below 1% of the standards and therefore are not subject to either ANSI standard (Docket No. A-94-60, Item IV-D-2). DOE estimates that approximately 10 existing sources over the next five years will be upgraded to meet the ANS/HPS N13.1-1999 standard (Docket No. A-94-60, Item IV-D-40). Assuming that these 10 sources are modified evenly across the 5 years, then the annual cost to install a sampling system compliant with the newer ANSI/HPS N13.1-1999 standard will be 2 × $100,000 totaling $200,000 per year.

Appendix B, Method 114—Test Methods for Measuring Radionuclide Emissions from Stationary Sources has additional inspection requirements taken directly from ANSI/HPS N13.1-1999. The DOE and DoD have estimated that a total of approximately 510 sources will be affected by these new inspection requirements at some point during the next 5 years (500 existing sources plus the 10 sources assumed to be built) (Docket No. A-94-60, Items IV-D-39 and IV-D-40). The State of Washington estimated that there would be a one time cost of approximately $5,000 per source to implement the new inspection requirement and an annual operational cost of $7,000 (Docket No. A-94-60, Item IV-D-41). Therefore, inspection costs are estimated to be $2.55 million as an initial investment with an additional annual operating and maintenance cost of $3.57 million.

On October 31, 1989, EPA promulgated NESHAPs under Section 112 of the Clean Air Act to control radionuclide emissions to the ambient air from a number of different source categories (54 FR 51654, December 15, 1989 (Docket A-94-60, Item II-A-1)). Subpart H of 40 CFR part 61 defines facilities owned and operated by the DOE as one of the source categories subject to a NESHAP. DOE administers many facilities, including government-owned/contractor-operated facilities, across the country. Some facilities conduct nuclear energy and weapons research and development, some enrich uranium and produce plutonium for nuclear weapons and reactors, and some process, store and dispose of radioactive wastes. As DOE facilities mature and complete their mission, some facilities are now faced with decontamination and decommissioning.

In general, certain DOE facilities handle significant amounts of radioactive material and can emit radionuclides into the air. Some of the DOE facilities emitting radionuclides are on large sites covering hundreds of square miles in remote locations. Some of the smaller facilities resemble typical industrial facilities and are located in suburban areas. DOE facilities emit a wide variety of radionuclides in various physical and chemical states. The purpose of subpart H is to limit radionuclide emissions (not including radon) from the stacks and vents at DOE facilities so that no member of the public receives an effective dose equivalent of more than 10 mrem/yr.

Subpart I sets forth the NESHAP for non-DOE federal facilities (excluding NRC licensees). The facilities in this category can emit a variety of radionuclides. These radionuclides affect individuals by inhalation, ingestion, ground deposition and immersion pathways. The purpose of subpart I is to limit radionuclide emissions, including iodine, from the stacks and vents at non-DOE federal facilities including DoD and other federal research and industrial facilities so that no member of the public receives an effective dose equivalent of more than 10 mrem/yr. and so that no member of the public receives an effective dose equivalent of more than 3 mrem/yr. from exposure to emissions of iodine.

Both subparts H and I require emissions sampling, monitoring and calculations to identify compliance with the standard. Section 61.93 of subpart H and § 61.107 of subpart I require continuous sampling and monitoring of radionuclide emissions at all release points that have a potential to discharge radionuclides into the ambient air in amounts that could cause an effective dose equivalent in excess of 1% of the standard. In evaluating the potential of a release point to discharge radionuclides into the air, the estimated radionuclide release rates shall be based on the discharge of the effluent stream that would result if all pollution control equipment did not exist, but the facility's operations were otherwise normal. Subparts H and I currently incorporate by reference ANSI N13.1-1969, “Guide to Sampling Airborne Radioactive Materials in Nuclear Facilities” (Docket A-94-60, Item II-D-1). However, in 1999, the American National Standards Institute revised ANSI N13.1-1969. The new ANSI/HPS N13.1-1999, “Sampling and Monitoring Releases of Airborne Radioactive Substances from the Stacks and Ducts of Nuclear Facilities,” was published as a supplement to the Health Physics Journal in May 1999 (Docket A-94-60, Item II-D-3).

A proposed amendment to incorporate ANSI/HPS N13.1-1999 into subparts H and I was published in the May 9, 2000, Federal Register (65 FR 29934) (Docket No. A-94-60, Item III-A-3). In developing the proposal, EPA reviewed the ANSI/HPS N13.1-1999 standard, conducted a comparative analysis of ANSI/HPS N13.1-1999 with ANSI N13.1-1969, assessed the compatibility of ANSI/HPS N13.1-1999 with subparts H and I, held discussions with DOE and members of the ANSI work group, and reviewed and analyzed ANSI/HPS N13.1-1999 supporting materials. Based on this analysis, EPA proposed amendments to require that ANSI/HPS N13.1-1999 be used for sampling any newly constructed source and any source undergoing a modification that would result in an effective dose equivalent to any member of the public greater than 1% of the standard.

The comment period for the proposed amendment initially lasted 30 days (from May 9, 2000 to June 9, 2000). EPA also received a request for a public hearing, which was held on July 12, 2000. After the public hearing, the comment period was extended to August 14, 2000. Upon receiving another request for an extension of the comment period, EPA extended it to October 6, 2000 (65 FR 21198) (Docket No. A-94-60, Item III-A-3). All comments were received before October 6, 2000, and were reviewed, analyzed and fully considered in developing the final amendment. Detailed responses to comments can be found in “Response to Comments Amendment to Radionuclide NESHAPs (40 CFR part 61), Subpart H and Subpart I” (Docket No. A-94-60, Item V-A-2).

Comments concerning the proposed amendment were received from DOE, DoD, members of the ANSI working group, environmental groups, various state departments of health and environmental protection, and private citizens. The most significant issue raised in the comments was EPA's proposal to “grandfather” existing sources (that is, not require upgrades to existing sampling systems). Aspects of this issue addressed in the comments include: whether upgrades would lead to more accurate samples, how costs were evaluated, and how the use of ANSI/HPS N13.1-1999 might affect unplanned releases. These issues are discussed below.

Several commenters raised issues such as the dose limits established in Subparts H and I, and aspects of computer modeling used to estimate doses. EPA determined that these issues do not relate to sampling procedures or systems and, thus, are outside the scope of this rulemaking.

To address the issue of whether to “grandfather” existing sources, EPA conducted an analysis of the ANSI/HPS N13.1-1999 standard. EPA compared the ANSI N13.1-1969 standard with the ANSI/HPS N13.1-1999 standard. The significant differences between the two standards are that the ANSI/HPS N13.1-1999 standard:

1. Does not include the requirements for multiple sampling nozzles and isokinetic sampling;

2. Provides performance criteria for selecting between sampling locations, as well as specifying methods for measuring velocity profiles;

3. Provides information on where to obtain assistance in designing sampling lines; and

4. Describes a graded approach in the sampling efforts.

EPA concluded that, “In practice, both standards will result in sampling locations at the same spot. For either standard, if velocity profiles are made and a uniform concentration of particles measured, there would be no difference in the required sampling location. The only difference would be in the number of sample nozzles specified. The implications to past and future compliance data generated at DOE facilities is minor, in that the changes in sampling location criteria between the two standards will not significantly change the representativeness of the sample extracted.” (Docket No. A-94-60, Item II-A-3) Therefore, EPA concluded, unless any field data indicated otherwise, that upgrading existing sources would not change the representativeness of the sample extracted. However, EPA also believed that ANSI/HPS N13.1-1999 incorporates significant advances in sampling and monitoring methodology that have occurred over the last 30 years and that its performance-based approach allows greater flexibility while still ensuring representative sampling. For new sources, the cost of installing systems compliant with ANSI/HPS N13.1-1999 are likely to be comparable to the cost of installing systems compliant with ANSI N13.1-1969 (refer to section B, Cost Information to Upgrade Existing Sources for additional information). For these reasons, the Agency determined that it was justified and prudent to require use of ANSI/HPS N13.1-1999 for new and modified sources.

Comments on the proposal, including claims that regulatory violations or health threats might result from not upgrading existing stacks, emphasized the importance of accurately assessing the real world implications of changes to sampling systems. Initially, EPA did not have actual field data indicating whether the compliance status of any existing source is likely to be changed by the adoption of the requirement of ANSI/HPS N13.1-1999. Therefore, EPA solicited field data pertaining to the comparative performance of ANSI/HPS N13.1-1999. EPA requested such data and information from the chairperson of the ANSI committee that developed the new sampling standard (Docket No. A-94-60, Item II-C-3), members of the ANSI committee, DOE, and attendees of the July 12, 2000, public hearing (Docket No. A-94-60, Item IV-D-18).

In response to these requests, DOE provided data that permitted a direct comparison of the effect of using ANSI N13.1-1969 versus ANSI/HPS N13.1-1999 to determine compliance at existing sources. The DOE sent data from Los Alamos National Laboratory, the Savannah River Site, and Rocky Flats that indicated that for stacks retrofitted with a shrouded probe as expected by ANSI/HPS N13.1-1999, sampling results were similar to those obtained with the use of the multiple nozzle rake (required by ANSI N31.1-1969). For example, DOE described the results of installing single point sampling systems on over 40 radionuclide air emission sources at the Savannah River Site as follows:

Another factor EPA considered in determining whether to grandfather existing DOE sources was an evaluation of recently reported radionuclide emission data from DOE facilities. In accordance with 40 CFR 61.94, DOE demonstrates compliance with the subpart H NESHAP by determining the highest effective dose equivalent (EDE) to any member of the public at any offsite location where there is a residence, school, business, or office. All DOE facilities subject to subpart H must annually report such monitoring results. Twenty-seven DOE facilities submitted subpart H reports to EPA headquarters for the year 2000 (these reports are located in Docket No. A-94-60, check the Index beginning with section V-B) . None of the reporting facilities were out of compliance. Four of these facilities (15%) reported an EDE to the nearest maximally exposed individual (MEI) to be greater than 1% of the 10 mrem/yr standard while 23 facilities (85%) reported a total EDE to the nearest MEI to be less than 10% of the 10 mrem/yr standard. Note that the highest EDE came from DOE's Fernald facility. Releases from this facility were measured at 1 mrem/yr, primarily due to removal or processing of a large volume of thorium-bearing waste pit material for shipment and off-site disposal. 1

To further understand the compliance and public health implications of upgrading (or not upgrading) existing sampling systems, EPA examined the Hanford facility 2000 report (Docket No. A-94-60, Item V-B-2). EPA picked Hanford for this particular analysis because it is one of DOE's largest facilities. The report noted that there were 26 major sources at the Hanford site (a source is designated as major when its potential maximum emissions after all treatment controls have been hypothetically removed can cause the highest potential exposure to be greater than 0.1 mrem/yr EDE). The reported EDE for the MEI ranged from 7.4 × 10 −13 to 4.5 × 10 −2 mrem/yr. Currently, estimated doses from emissions sampled under ANSI N13.1-1969 at Hanford are ten to thousands of times lower than EPA's dose limits. Therefore, upgrading the existing sampling systems to comply with ANSI/HPS N13.1-1999 would result in detection of releases exceeding EPA's standards only if actual emissions were orders of magnitude higher than those found by current systems. Available data provide no basis to conclude that, in general, there would be any measurable difference in detected emissions using ANSI/HPS N13.1-1999 as opposed to ANSI N13.1-1969. These reported doses confirm EPA's conclusion reached during the proposal development that there are likely no detrimental impacts on regulatory compliance of DOE facilities or public health from allowing existing sampling systems to remain in operation.

Another significant factor that EPA considered in determining whether to require all facilities to meet the requirements of ANSI/HPS N13.1-1999 was the cost associated with such an effort. EPA received cost estimates from both DOE and the ANSI work group (Docket No. A-94-60, Items IV-D-7 and IV-D-3). The estimated cost to upgrade an existing system ranged from $65,000 to $2.5 million per sampling system. Because of the widely divergent cost estimates, EPA commissioned a third party expert to conduct an independent analysis of the expected cost of upgrades that would be necessary to meet ANSI/HPS N13.1-1999. EPA contacted Andersen Instruments, Inc., a well-established company responsible for the design, construction and placement of the shrouded probe at several DOE facilities, to determine the cost of upgrading existing sampling systems to meet the ANSI/HPS N13.1-1999 standard. 2 The following statement was presented to EPA by Andersen Instruments, Inc.:

If the Agency were to require the approximately 500 existing DOE and DoD sources (see Section I.D. of this preamble) to upgrade to the newer ANSI/HPS N13.1-1999 standard, these costs would be approximately $50 million. Given that EPA's analysis demonstrates that, in general, there would not be any measurable difference in detected emissions using ANSI/HPS N13.1-1999 rather than ANSI N13.1-1969, EPA concludes that the expected benefit of requiring use of ANSI/HPS N13.1-1999 at all existing sources does not justify the resource expenditures that would be required to effect this change.

The emissions limitations in subparts H and I apply to all releases, whether incident to normal operations or accidental. Therefore, EPA examined whether certain facets of ANSI/HPS N13.1-1999 could help prevent or reduce accidental releases of radioactivity from regulated facilities. A number of commenters suggested that application of ANSI/HPS N13.1-1999 could result in fewer accidental or unplanned releases of radionuclides. Oftentimes, accidental releases bypass control equipment, as a result, emissions may have particles sizes associated with the aerosol upstream of the control equipment, rather than that typically encountered downstream of control equipment. These larger particles can often be sampled more effectively using the shrouded probes encouraged by ANSI/HPS N13.1-1999. For these reasons, EPA evaluated the potential effects of accidental releases when using ANSI/HPS N13.1-1999.

To begin, EPA sought to characterize unplanned releases. There were 37 unplanned releases reported in the subpart H reports from 1994-1997 and 1999. The average dose resulting from these accidental releases was 0.034 mrem/yr. 3 Nineteen (51%) unplanned releases were attributed to human error. Nine (24%) unplanned releases were considered a result of poor inspections. Two (5%) unplanned releases occurred outside of the stack and seven (19%) unplanned releases were not sufficiently described for classification (due to the withholding of sensitive information).

EPA concluded that utilizing ANSI/HPS N13.1-1999 rather than ANSI N13.1-1969 would not have reduced the occurrence of accidental releases due to human error, nor would it have affected releases occurring outside the stack. Furthermore, doses from unplanned releases were so low (on average, almost 1000 times lower than the applicable standard) that even significant increases in sampled emissions, if found, would have had minimal public health impact and would have been unlikely to affect radionuclide NESHAPs compliance.

EPA determined, however, that 24% of unplanned releases may not have occurred if more stringent inspection requirements, such as those in ANSI/HPS N13.1-1999, were required by subparts H and I. Properly functioning sampling systems—as ensured by regular, rigorous inspections—can provide an early indication of an otherwise unapparent failure of emissions control equipment or other conditions contributing to unplanned releases. EPA therefore imposed only those provisions of ANSI/HPS N13.1-1999 affecting inspections, but determined that other aspects of ANSI/HPS N13.1-1999 would not affect these kinds of unplanned releases. To implement these inspection requirements as part of subparts H and I, EPA has amended the Quality Assurance Methods in Appendix B, Method 114—Test Methods for Measuring Radionuclides Emissions from Stationary Sources to include a table that specifies when each component of the sampling system must be inspected. This table is based on a similar table found in ANSI/HPS N13.1-1999.

EPA determines that any potential improvement in sampling from existing sources subject to 40 CFR part 61, subparts H and I, when viewed against the substantial cost of upgrading all existing sources to meet ANSI/HPS N13.1-1999, does not justify imposing such an expenditure across the entire Federal complex. EPA acknowledges, however, that application of ANSI/HPS N13.1-1999 to certain existing DOE sources may result in a cost-effective net environmental benefit. In those instances, EPA encourages DOE to make the necessary changes to further ensure protection of human health and the environment. To promote such changes, EPA plans to pursue a Memorandum of Understanding with DOE that would aid in identifying sources that should be upgraded to meet the ANSI/HPS N13.1-1999 standard. Moreover, EPA has concluded that application of more stringent inspection requirements, as set forth in ANSI/HPS N13.1-1999, could potentially result in a significant decrease in unplanned releases of radionuclides to the air. Therefore, EPA is amending Appendix B of subparts H and I to incorporate such improved inspection requirements.

To conclude, the final amendment to subpart H and subpart I requires the use of the ANSI/HPS N13.1-1999 standard for new sources as defined in subpart A, including any modified sources that require continuous monitoring. For existing sources, ANSI/HPS N13.1-1999 can be used as a pre-approved alternative methodology as defined in Section 61.93 of subpart H and Section 61.107 of subpart I. The final rule also includes more stringent inspection requirements for ANSI N13.1-1969 systems in 40 CFR part 61 Appendix B, Method 114—Test Methods for Measuring Radionuclide Emissions from Stationary Sources (both subparts H and I require implementing the Quality Assurance Methods in Appendix B, Method 114 when conducting a quality assurance assessment). These requirements will ensure that existing sampling systems, where continuous monitoring is required, are regularly inspected and continue to function as designed.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impact of today's rule on small entities, small entities are defined as: (1) A small business that meets the Small Business Administration size standards; (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; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This final rule only imposes requirements on DOE facilities emitting specific radionuclides and non DOE federal facilities. This rule will not impose any requirements on small entities.

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 regulatory requirements. Today's action contains no Federal mandates (under the regulatory provisions of Title II of UMRA) for State, local or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector; this amendment applies only to facilities owned or operated by DOE and non-DOE federal facilities.

This action does not impose any new information collection burden. The purpose of this amendment is to place in an existing regulation, new sampling and monitoring procedures. Thus this action will not impose any new information collection burden. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR part 61, Subparts B, H, I, K, R, T, W) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0191 (EPA ICR No. 1101.11).

Copies of the ICR document may be obtained from Susan Auby, by mail at the Office of Environmental Information, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at auby.susan@epa.gov, or by calling (202) 566-1672. A copy may also be downloaded off the internet at http://www.epa.gov/icr. Please include the ICR and/or OMB number in any correspondence.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

Under Executive Order 12866, 58 FR 51736 (October 4, 1993), EPA must determine whether a regulation is “significant” and therefore subject to review by the Office of Management and Budget. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

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

EPA determines that this rule is not subject to Executive Order 13045. As described above, this action does not constitute an economically significant rule as defined by Executive Order 12866. Further, EPA determines that the matter addressed in this rule, i.e. , whether to apply ANSI/HPS N13.1-1999 as the sampling and monitoring standard for Federal radionuclide existing sources, does not involve a decision on environmental health or safety risks that may disproportionately affect children.

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” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This amendment applies only to facilities owned or operated by DOE and non-DOE federal facilities. Thus, Executive Order 13132 does not apply to this rule.

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

This final rule does not have tribal implications, as specified in Executive Order 13175. No tribal governments are directly regulated by this regulatory action and the nature of these amendments will impose no substantial direct effects on one or more Indian tribes. This rule does not affect the emission limits of any facility, nor will it have any impact on facility emissions, and therefore will have no impact on populations near any regulated facility. Thus, Executive Order 13175 does not apply to this rule.

As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, Section 12 (d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless 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 rulemaking is intended to increase the use of the ANSI/HPS N13.1-1999, a consensus standard developed by the American National Standards Institute (ANSI) Working Group. Thus, it is consistent with the goals of the NTTAA.

The American National Standards Institute (ANSI) has served as administrator and coordinator of the United States private sector voluntary standardization system for 80 years, by promoting and facilitating voluntary consensus standards and conformity assessment systems and by promoting their integrity.

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 Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective 30 days after date of publication in the Federal Register .

In the past, properties in high cost travel areas have been under no obligation to provide lodging to Federal travelers at the prescribed per diem rate. Thus, GSA established the FPLP to contract directly with properties in high cost travel markets to make available a set number of rooms to Federal travelers at contract rates. FPLP contract results along with the lodging survey data are integrated together to determine reasonable per diem rates that more accurately reflect lodging costs in these areas. In addition, the FPLP will enhance the Government's ability to better meet its overall room night demand, and allow travelers to find lodging close to where they need to conduct business. After an analysis of this additional data, the maximum lodging amounts are being changed in Miami, and Tampa/St. Petersburg, Florida; and Atlanta, Georgia.

GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.

This Final rule is not required to be published in the Federal Register for notice and comment; therefore, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., does not apply.

The Paperwork Reduction Act does not apply because the proposed revisions do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 501 et seq.

This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

The Federal Emergency Management Agency makes the final determinations listed below of modified base flood elevations for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Administrator has resolved any appeals resulting from this notification.

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

The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

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

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

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

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Federal Emergency Management Agency (FEMA or Agency) makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

The Administrator, Federal Insurance and Mitigation Administration, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

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

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

In the Order on Reconsideration, the Commission addressed several issues raised in ex parte comments or in petitions for reconsideration and subsequent pleadings.

The Commission clarified, pursuant to a request by the Administrative Council for Terminal Attachments (Administrative Council) seeking clarification of § 68.602(c), that a formal contract is not required between the Administrative Council and its sponsors. In establishing § 68.602(c), the Commission intended to ensure that the nature of the arrangement between the Administrative Council and its sponsor(s) is subject to public disclosure. The Administrative Council states that it will develop a statement of work or similar document pertaining to its relationship with its sponsors, and make the document available online and from the secretariat upon request. The Commission found that this would be sufficient for purposes of compliance with § 68.602(c).

The Commission denied petitions to reconsider the supplier's declaration of conformity (SDoC) procedure established in the Report and Order, stating that the Commission has long permitted testing of part 68 equipment by non-accredited laboratories, with few documented problems, and has required laboratory accreditation only in instances where the test procedures are sufficiently complex so as to raise concerns about the tests being performed properly. The Commission found no such concerns with the tests required for part 68 terminal equipment. Moreover, the Commission stated that commenters' concerns that use of the SDoC process will lead to non-compliant equipment are unfounded.

The Commission granted Industry Canada's request to delete the requirement in § 68.321 of the rules that responsible parties be located within the United States. The Commission amended § 68.321 to specify that responsible parties must designate an agent for service of process that maintains an office within the United States.

The Commission denied the petition by the American National Standards Institute to accept standards development by the Canvass method of consensus for technical criteria, but granted the American National Standards Institute petition as to appeals procedures. The Commission found that the Organization and Standards Committee methods of development provide additional assurance of public participation, similar to that provided in a rulemaking proceeding, by allowing open participation. Thus, the Commission intends to ensure that interested parties have a voice in drafting the standards at an early stage in the standards development process. Notwithstanding the American National Standards Institute's finding that the Canvassing method ultimately provides a similar level of due process afforded by the other two methods, the Commission found that for the purpose of developing technical criteria, it is essential for all interested parties to have an opportunity to enjoy full participation in the standards development process from the outset of that process.

In addition, the Commission clarified on its own motion that after technical criteria are published, and the 30-day public notice period passes, technical criteria will be deemed to be presumptively valid and remain so during appeal, unless they are subsequently invalidated by the standards development organization, the Administrative Council, the American National Standards Institute, or the Commission.

The Commission granted the requests of several petitioners to eliminate the provisions in §§ 68.354(d) and 68.612 requiring the manufacturer(s) of terminal equipment to be identified on the label and in the database of approved terminal equipment. The Commission found that current business practices often are that the licensing entity, whose name is on the product, contracts with several manufacturers to produce the equipment. In such case the relevant entity is the licensing party, not the manufacturer. These contract manufacturers are numerous and may change frequently and, perhaps most importantly, their identities are proprietary information for the licensing entity.

The Commission also denied petitions to retain the technical rules for type B surge requirements. The Commission stated that the privatized system is the most efficient and responsive method for addressing future updates to the technical criteria for terminal equipment. It found that BellSouth's concerns, that the Type B surge requirements would be eliminated under the privatized system, are unfounded. The Commission pointed out that the Administrative Council has no discretion unilaterally to remove the Type B surge requirements. Standards development organizations that meet the requirements of the Report and Order are the only entities that may formulate changes to, or ultimately eliminate, technical criteria. Such standards development organizations must permit open participation in the development or amendment of technical requirements, and they must follow consensus procedures. The Administrative Council merely publishes these criteria after ensuring the Commission's requirements were met. Moreover, the Commission retains de novo review, appeals and enforcement jurisdiction in the event of an appeal of technical criteria.

On its own motion, the Commission amended § 68.162(e)(5)(i) to clarify that the Administrative Council is responsible for publishing technical criteria, and § 68.162(g) to provide that certificates issued by Telecommunications Certification Bodies be given to the Administrative Council rather than to the Commission.

The Commission declined to take further action on a 1998 Biennial Review proceeding regarding signal power limitations, but allowed the industry to develop standards if it determines such standards are appropriate and reasonable. In addition, the Commission clarified that the Administrative Council shall publish the technical criteria that have been the subject of its streamlined waiver proceedings.

The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found not to impose new or modified reporting and recordkeeping requirements or burdens on the public.

In the Report and Order, the Commission concluded that privatizing the terminal equipment registration process would reduce unnecessary costs and delays currently imposed upon suppliers and the Commission without measurably increasing the possibility of harm to the network. The Commission found that registration of terminal equipment shall continue, but that suppliers may show compliance with the technical criteria through one of two means. First, suppliers may seek approval of terminal equipment's compliance with the relevant technical criteria from private Telecommunications Certification Bodies. In the alternative, suppliers may show compliance through the SDoC method of equipment approval. Upon weighing the substantial benefits of accelerating the terminal equipment approval process against the unlikely possibility of any cost increases associated with harm to the PSTN that may result from a decreased presence of the Commission in the approval process, the Commission concluded that is no longer in the public interest for it to continue its Part 68 registration functions.

This Order on Reconsideration affirms the Commission's findings with regard to these provisions, and hence the economic effect on small businesses will not change from that discussed in the Report and Order. Therefore, we certify that the requirements of this Order on Reconsideration will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of this Order on Reconsideration including a copy of this Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, this Order on Reconsideration and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register . See 5 U.S.C. 605(b).

Accordingly, it is ordered that, pursuant to the authority contained in Sections 1-4, 201-205 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-205 and 303(r), this order on reconsideration in CC Docket No. 99-216 and order terminating proceeding in CC Docket No. 98-163 is hereby adopted and Part 68 of the Commission's rules are amended as set forth. It is further ordered that the amendments of the Commission's rules as set forth are adopted, effective October 9, 2002.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

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

In accordance with § 679.20(a)(5)(i)(C)( 1 ) and the American Fisheries Act (AFA) (Public Law 105-277, Division C, Title II), NMFS specified a pollock incidental catch allowance equal to 4 percent of the pollock total allowable catch after subtraction of the ten percent Community Development Quota reserve in the emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002, and 67 FR 34860, May 16, 2002).

As of August 17, 2002, the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that approximately 22,104 metric tons (mt) of pollock remain in the incidental catch account. Based on projected harvest rates of other groundfish species and the expected bycatch of pollock in those fisheries, the Regional Administrator has determined that 9,000 mt of pollock specified in the incidental catch account will not be necessary as incidental catch. Therefore, NMFS is apportioning the projected unused amount, 9,000 mt, of pollock from the incidental catch account to the directed fishing allowances established at § 679.20(a)(5)(i)(C)( 2 ). This transfer will increase the allocation to catcher vessels harvesting pollock for processing by the inshore component by 4,500 mt, to catcher/processors and catcher vessels harvesting pollock for processing by catcher processors in the offshore component by 3,600 mt and to catcher vessels harvesting pollock for processing by motherships in the offshore component by 900 mt. Pursuant to § 679.20(a)(5)(i)(C)( 2 )( ii ), no less than 8.5 percent of the 3,600 mt allocated to catcher processors in the offshore component, 306 mt, will be available for harvest only by eligible catcher vessels delivering to listed catcher processors.

Pursuant to § 679.20(a)(5)(i)(C)( 3 ), Table 1, which is a revision of Table 11 in the Final 2002 Harvest Specifications (67 FR 956, January 8, 2002), revises the final 2002 BS subarea allocations to include the seven inshore catcher vessel pollock cooperatives that have been approved and permitted by NMFS for the 2002 fishing year consistent with this reallocation.

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

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

This action is taken under 50 CFR 679.20, and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.The amount of the 2002 TAC of “other rockfish” in the Bering Sea subarea of the BSAI was established as 307 metric tons by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the amount of the 2002 TAC for “other rockfish” in the Bering Sea subarea of the BSAI has been achieved. Therefore, NMFS is requiring that further catches of “other rockfish” in the Bering Sea subarea of the BSAI be treated as prohibited species in accordance with § 679.21(b).

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

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

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

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

Within any fishing year, underage or overage of a seasonal allowance may be added to or subtracted from subsequent seasonal allowances in a manner to be determined by the Regional Administrator, Alaska Region, NMFS, provided that the sum of the revised seasonal allowances does not exceed 30 percent of the annual TAC apportionment for the Central and Western Regulatory Areas in the GOA (§ 679.20(a)(5)(ii)(C)). For 2002, 30 percent of the annual TAC for the Central and Western Regulatory Areas is 15,187 mt. For 2002, the Regional Administrator has determined that within each area for which a seasonal allowance is established, any overage or underage of harvest from the previous season(s) shall be subtracted from or added to the seasonal allowance of the following season provided that the resulting sum of seasonal allowances in the Central and Western Regulatory Areas does not exceed 15,187 mt in any single season. The C season allowance of the pollock TAC in Statistical Area 630 is 3,803 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002, and 67 FR 34860, May 16, 2002). The B season allowance in Statistical Area 630 was exceeded by 248 mt, therefore the Regional Administrator, in accordance with § 679.20(a)(5)(ii)(C), is reducing the C season pollock TAC in Statistical Area 630 by 248 mt to 3,555 mt.

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the C season allowance of the pollock TAC in Statistical Area 630 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,455 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630.

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

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

The Assistant Administrator for Fisheries, NOAA, also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.This action is required by § 679.20 and is exempt from review under Executive Order 12866.