This rule is issued under Marketing Agreement No. 124 and Order No. 916, both as amended (7 CFR part 916), regulating the handling of nectarines grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California nectarine handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable nectarines beginning on March 1, 2002, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule continues in effect the decreased assessment rate established for the committee for the 2002-03 and subsequent fiscal periods. The rate was decreased from $0.20 to $0.19 per 25-pound container or container equivalent of nectarines.

The nectarine marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers of California nectarines. They are familiar with the committee's needs, and with the costs for goods and services in their local area and are, thus, in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2001-02 fiscal period, the committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA.

The committee met on May 1, 2002, and unanimously recommended 2002-03 expenditures of $4,671,342 and an assessment rate of $0.19 per 25-pound container or container equivalent of nectarines. In comparison, last year's budgeted expenditures were $4,338,744. The recommended rate is $0.01 lower than the previous rate.

The decrease was recommended because the crop is expected to be larger than originally estimated. In early spring, the crop was estimated to be 22 million containers or container equivalents of nectarines. The crop is now estimated to be more than 23 million containers or container equivalents. Assessment income and funds from the committee's operating reserve will be adequate to cover approved committee expenses in 2002-03.

The major expenditures recommended by the committee for 2002-03 include $505,000 for salaries and benefits, $309,039 for general expenses, $1,050,000 for inspection, $138,018 for research, and $2,574,160 for domestic and international promotion.

Budgeted expenses for these items in 2001-02 were $423,176 for salaries and benefits, $157,821 for general expenses, $1,000,000 for inspection, $169,393 for research, and $2,429,000 for domestic and international promotion.

To determine the applicable 2002-03 assessment rate, the committee considered the total expenses of $4,671,342, and the assessable nectarines estimated at 23,248,000 25-pound containers or container equivalents. At the $0.19 rate, assessment income for 2002-03 will be $4,417,120. The committee began 2002-03 with $684,368 in operating reserves and expects to end the fiscal period with $350,000. Section 916.42 authorizes a reserve equal to approximately one fiscal period's expenses. Funds from the committee's operating reserve will be kept within the maximum permitted.

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate is effective for an indefinite period, the committee will continue to meet annually to recommend a budget of expenses and to consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2002-03 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 300 California nectarine handlers subject to regulation under the order covering nectarines grown in California, and about 1,800 producers of nectarines grown in California. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $5,000,000. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000. A majority of these handlers and producers may be classified as small entities.

In the 2001 season, the average handler price received was $9.00 per container or container equivalent of nectarines. A handler would have to ship at least 555,556 containers or container equivalents of nectarines to have annual receipts of $5,000,000. Based on shipment data maintained by the committee's staff, it is estimated that small handlers of nectarines represent approximately 94 percent of the handlers within the industry.

In the 2001 season, the average producer price received was $5.50 per container or container equivalent of nectarines. A producer would have to produce at least 136,364 containers or container equivalents of nectarines to have annual receipts of $750,000. Based on data maintained by the committee's staff, it is estimated that small producers represent approximately 78 percent of the nectarine producers within the industry.

This rule continues in effect the decreased assessment rate established for the committee and collected from handlers for the 2002-03 and subsequent fiscal periods. The assessment rate was decreased from $0.20 to $0.19 per 25-pound container or container equivalent of nectarines. The committee unanimously recommended 2002-03 expenditures of $4,671,342 and an assessment rate of $0.19 per 25-pound container or container equivalent of nectarines. The recommended assessment rate is $0.01 lower than the previous rate. The quantity of assessable nectarines for the 2002-03 fiscal year is estimated at 23,248,000 25-pound containers or container equivalents. Thus, the $0.19 rate should provide $4,417,120 in assessment income. Income derived from handler assessments, along with other income and funds from the committee's authorized reserve will be adequate to cover budgeted expenses.

The major expenditures recommended by the committee for the 2002-03 year include $505,000 for salaries and benefits, $309,039 for general expenses, $1,050,000 for inspection, $138,018 for research, and $2,574,160 for domestic and international promotion.

Budgeted expenses for these items in 2001-02 were $423,176 for salaries and benefits, $157,821 for general expenses, $1,000,00 for inspection, $169,393 for research, $2,429,000 for domestic and international promotion.

The decrease was recommended because the crop is expected to be larger than originally estimated. The crop estimate in early spring was 22 million containers or container equivalents of nectarines. The crop is now estimated to be more than 23 million containers or container equivalents. The committee reviewed and unanimously recommended 2002-03 expenditures of $4,671,342.

Prior to arriving at this budget, the committee considered information and recommendations from various sources, including, but not limited to: the Management Services Committee, the Research Subcommittee, the International Programs Subcommittee, the Grade and Size Subcommittee, the Domestic Promotion Subcommittee, and the Grower Relations Subcommittee. The assessment rate of $0.19 per 25-pound container or container equivalent is expected to result in an operating reserve of $350,000, which is less than the committee generally recommends, but considered adequate to meet the committee's financial needs in the early part of the 2003 season.

A review of historical and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2002-03 season could range between $5.50 and $6.00 per 25-pound container or container equivalent of nectarines. Therefore, the estimated assessment revenue for the 2002-03 fiscal period as a percentage of total grower revenue could range between 3.17 and 3.45 percent.

This action continues in effect the decreased assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the committee's meeting was widely publicized throughout the California nectarine industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the May 1, 2002, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. This action imposes no additional reporting or recordkeeping requirements on either small or large handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

An interim final rule concerning this action was published in the Federal Register on June 25, 2002 (67 FR 42707). Copies of that rule were made available to all nectarine growers. Finally, the interim final rule was made available through the Internet by the Office of the Federal Register and USDA. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on August 26, 2002, and no comments were received.

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

This rule is issued under Marketing Agreement and Order No. 955, (7 CFR part 955), regulating the handling of Vidalia onions grown in Georgia, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

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.

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

This rule continues in effect changes to the reporting and assessment requirements prescribed under the order. This rule continues in effect the change from monthly shipment reporting to weekly reporting. It also continues in effect changes in when assessments are due and how delinquent assessments are handled. This rule provides the industry with more accurate and timely shipment and supply information and facilitates assessment collection. The Committee unanimously recommended these changes at a meeting held on December 6, 2001.

Section 955.60 of the order provides authority for the Committee to require handlers to file reports and provide other information as may be necessary for the Committee to perform its duties. Section 955.101 of the regulations provides the requisite reporting requirements. Previously, handlers were required to file monthly reports including the name and address of the handler, the period covered in the report, the total Vidalia onions received by the handler, and the handler's total fresh market shipments.

Section 955.42 provides the authority for the formulation of an annual budget of expenses and the collection of assessments from handlers to administer the order. Section 955.42(f) provides the authority to impose a late payment charge or an interest charge or both, on any handler who fails to pay assessments in a timely manner and the authority to establish the time and rate of such charges. Section 955.142 of the rules and regulations outlines the procedures for applying interest charges to delinquent assessments.

This rule continues in effect revisions to § 955.101 requiring handlers to file shipping reports on a weekly, rather than a monthly, basis. This rule also continues in effect revisions to § 955.142, specifying when assessments are due and adjusting the way interest is applied to delinquent assessments.

Previously, § 955.101 required handlers to provide the Committee with information regarding the volume of Vidalia onions they received and shipped during each month of the shipping season. The shipping reports were to be filed no later than seven days after the end of each shipping month. The Committee provided a form to assist handlers with supplying the required shipping information. The main fresh shipping season for Vidalia onions generally runs from April through June. However, over the past 10 years, the industry has developed and refined Controlled Atmosphere (CA) storage, allowing Vidalia onions to be shipped throughout the year.

When the reporting requirement was originally implemented following the promulgation of the order in 1990, the Committee believed the best method for obtaining shipment data was by requiring handlers to report their volume of fresh market shipments at the end of each week. However, after the order had been in operation for a few seasons, the Committee found that many handlers considered weekly reporting too cumbersome. In the early 1990's, many Vidalia onion growers and handlers were small family operations. These operations did not pack large quantities or only packed for a limited time. Assessments owed were relatively small, and the industry found weekly reporting unnecessary and burdensome. Consequently, the Committee recommended a change to monthly reporting in 1993 (January 13, 1994, 59 FR 1896).

In the early years of the order, if a handler missed a report and owed assessments for a short period of time, it did not create a significant problem. The entities were small and the volumes shipped and the assessment amounts owed were often minimal. However, the Vidalia onion industry has grown from approximately 3,700 acres in 1989, to approximately 15,000 acres in 2001, producing a much larger volume of Vidalia onions. With advances in farming technology and changes in farm size, many smaller entities became part of larger enterprises or sell their onions to large handling operations rather than handle the onions themselves. These large operations can pack a considerable volume of Vidalia onions in a short amount of time. Under monthly reporting, the volumes shipped and assessments owed by a single handler can now be significant.

The Committee uses the information in the shipment reports to improve decision-making and program administration with regard to marketing research, market development, and promotional activities. The more accurate the information obtained from handlers, the more precise the Committee can be in adjusting its marketing research and promotion efforts. The shipment information is also provided to the industry on a composite basis to aid growers and handlers in planning their individual operations and in making marketing decisions during the season.

The reports are also used by the Committee to calculate the assessments owed by each handler. These reports are the Committee's best source for industry shipping data. Because these reports are so closely tied to industry information and assessment collection, it is imperative that the reports be both timely and accurate. Timely reports translate into information that is more exact and current and helps expedite the collection of assessments. However, the Committee had been experiencing problems receiving timely reports from some handlers. With handling operations increasing in size, delays in receiving reports were magnifying the industry's information and assessment collection problems because of the volume shipped and assessments owed.

With handlers failing to file reports in a timely manner, the composite reports the Committee issues on this shipping data were compromised. Delayed reporting made available industry information inaccurate. In some years, the Committee had not received accurate monthly pack-out figures until the end of the season. Consequently, Committee reports based on this data were of limited value to the industry. In addition, in this time of rapidly changing markets, monthly reports offer handlers little insight into current market conditions. Because of these things, there was no reliable information regarding the amount of Vidalia onions in the current channels of commerce. Without good information regarding the supply of Vidalia onions available in the market, the pipelines became full, driving down prices.

Delayed reporting also effected assessment collection. The Committee needs accurate and timely reporting to calculate and collect assessments due. Late reporting can lead to late assessment payments and corresponding interest charges on these late payments. If the handler has a small operation, this problem has little impact on the overall Committee budget. However, with the size of handler operations increasing, a larger handler can affect the Committee's cash flow and budget by falling behind in its reporting and with the corresponding assessment payments. This could force the Committee to delay, reduce, or eliminate projects due to lack of financial resources. The Committee does have the authority to go to lending institutions for operating capital, but prefers not to incur debt or the accompanying interest expense. Thus, it is important that reports and assessments be forwarded in a timely manner.

To address these problems, the Committee voted unanimously to change the reporting requirement from monthly reporting to weekly reporting. Under this change, the shipping week is defined as Monday through Sunday. Reports for each shipping week are due no later than 4 p.m. on Tuesday of the following week. Handlers are required to file reports for each season, with each new season beginning January 1. Handlers begin reporting the first week of the season in which they have shipments. In weeks when no shipments are made the handler is still required to file a report indicating that they had zero shipments. This continues until the handler files a final report for the season. The reporting form provided by the Committee has a space for the handler to indicate when they are filing their final report.

The Committee believes this change reduces the problems with late reporting and delinquent assessments. This change gives Committee staff an earlier indication of potential problems. By identifying these potential problems sooner, the Committee staff can address them in a shorter period than under the monthly reporting requirement and before the volumes and assessments due grow to significant amounts.

Weekly reporting compresses the reporting window and helps accelerate the compliance process. Identifying handlers that are not reporting can now be measured in weeks rather than months. With weekly reporting, the Committee's compliance officer has a better indication of which operating handlers are filing timely reports and can concentrate compliance efforts on non-reporting handlers. A quicker response to potential compliance problems should help reduce reporting delays. Therefore, this change improves industry reporting and helps the Committee staff more accurately track industry shipments.

The Committee believes weekly reporting also improves the accuracy and benefits of their composite reports. Handlers receive more accurate information regarding industry shipments and in a timelier manner. With a shipping week of Monday through Sunday, handlers are required to file reports no later than 4 p.m. on Tuesday following the week shipments were made. The Committee assembles composite reports by Wednesday and distributes them to handlers. Consequently, handlers have information on shipments and the supply of onions on the market on a timelier basis.

Having weekly shipping data provides a clearer picture of market conditions and affords better information regarding the balance of supply and demand. This is expected to help handlers better address market swings, reduce market gluts, and increase grower returns.

Because reporting and assessments are tied closely, the Committee believes this change also helps expedite the collection of assessments. Reducing the volume of delayed reporting provides the Committee with better, timelier information on which to determine assessments due. As with the filing of reports, the Committee staff has an earlier indication under weekly reporting of those handlers that are not paying their assessments in a timely manner. Again, the earlier a problem can be identified, the quicker it can be addressed and compliance and collection efforts can be started.

Timely reports are important for both accurate reports and assessment collection. Therefore, the Committee recommended that the shipment reporting requirement in § 955.101 be changed from monthly reporting to weekly reporting.

In addition, this rule continues in effect revisions to § 955.101, to add information being reported by handlers but that was not specified in the provisions. Under the revised provisions, handlers report their name and address, the period covered by the report, the total onions received by the handler, the total fresh market onions shipped, as well as the amount of shipments from their own acreage, their total assessments due, the amount of onions sold, the volume of onions packed under contract for another handler and the handler name(s), onions sold to another handler, and information on onions placed in Controlled Atmosphere storage.

This rule also continues in effect revisions to the rules and regulations regarding the handling of delinquent assessments. Section 955.142 had stated that each handler must pay interest charges of 1 percent per month on any unpaid assessments levied, and on any accrued unpaid interest beginning thirty days after the date of billing, until the delinquent handler's assessment plus applicable interest had been paid in full. This rule continues in effect changes specifying when assessments are due from handlers and adjusting the way interest is applied to delinquent assessments.

Under past requirements, a handler reported shipments at the end of each month. The handler could then request to be billed for the assessments due on those shipments reported. The handler could further delay payment by holding the bill until the Committee sent a follow-up letter. This created budgeting problems and angered those handlers paying on time.

To make the collection of assessments easier, timelier, and more cost-effective, the Committee voted to revise § 955.142 by making assessments due at the time when the handler's shipping volume is required to be reported. With the change to weekly reporting, assessments are paid on a weekly basis for each week of shipments. Assessments are now due no later than 4 p.m. on Tuesday for those shipments made the previous week (Monday through Sunday). The option to request billing for assessments is no longer available.

This change makes it easier to collect assessments. It is no longer necessary to keep track of who has paid, and who needs to be billed. Each handler's assessments are collected the same way and are due at the same time. With this change, the Committee also receives its money in a timelier manner. Rather than having to submit a bill and wait for payment, payment is due immediately on the date when the weekly shipments are required to be reported. This change also saves the Committee money by reducing mailing costs associated with having to bill handlers for assessments.

This change also improves the Committee's cash flow. Rather than lump sum payments at the end of the season or large monthly collections, assessment income is received each week of the shipping season.

Therefore, the Committee voted that § 955.142 be changed so assessments are due no later than 4 p.m. on the Tuesday immediately following the week in which the shipments were made, at the same time weekly reports are due.

Finally, this rule continues in effect revisions to § 955.142 that adjust the way interest charges are applied to delinquent assessments. Previously, § 955.142 specified that handlers must pay interest of 1 percent per month on any unpaid assessments and on any accrued unpaid interest beginning thirty days after the date of billing. The Committee recommended changing this language so that interest accrues at 1 percent per week on any unpaid assessments and any accrued unpaid interest beginning with the day the assessments were due until the delinquent handler's assessment plus applicable interest has been paid in full. Consequently, interest begins accruing on delinquent assessments on the Wednesday immediately following the Tuesday when the assessments were due.

The Committee also voted to increase the interest charged to encourage handlers to pay on time. In the past, some handlers waited until the end of the season to pay their assessments, in a way, forcing the Committee to basically loan them the assessment money.

This change provides more incentive for handlers to pay in a timely manner. The additional interest charge also helps compensate the Committee for the extra effort and expenditures required to collect the late assessments. This change is expected to improve assessment collection, provide more timely payments, reduce compliance costs, and reduce the need for the Committee to borrow operating funds.

The Committee has been looking for ways to improve the timeliness of reports and the payment of assessments. The Committee believes these changes help address these issues.

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

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

There are approximately 133 producers of Vidalia onions in the production area and approximately 109 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms, which include handlers, are defined as those whose annual receipts are less than $5,000,000.

Based on the Georgia Agricultural Statistical Service and Committee data, the average annual grower price for fresh Vidalia onions during the 2001 season was $13.75 per 50-pound bag. Total Vidalia onion shipments for the 2001 season were around 3,592,200 50-pound bags. Using available data, about 97 percent of Vidalia onion handlers could be considered small businesses under the SBA definition. In addition, based on acreage, production, grower prices as reported by the National Agricultural Statistics Service, and the total number of Vidalia onion growers, the average annual grower revenue is below $750,000. In view of the foregoing, it can be concluded that the majority of handlers and producers of Vidalia onions may be classified as small entities.

The Committee had not been receiving timely reports from some handlers. With handling operations increasing in size, this had a negative impact on both industry information and assessment collection because the quantities shipped and assessments owed by some delinquent handlers were significant. This rule continues to revise § 955.101, requiring handlers to file shipping reports on a weekly basis rather than monthly and increases the information requested. This rule also continues to revise § 955.142, specifying when assessments are due and adjusting the way interest is applied to delinquent assessments. By identifying problems sooner, they can be addressed in a shorter period than under monthly reporting and before the volumes and assessments due grow to significant amounts. This rule also encourages handlers to report and pay their required assessments in a timely manner to avoid increased interest charges and other compliance activities. These changes should help reduce the problems with late reporting and assessment collection and provide more accurate information on shipments and supply. Authority for these actions is provided in §§ 955.42 and 955.60 of the order. The Committee unanimously recommended these changes at a December 6, 2001, meeting.

With weekly reporting, the Committee has more accurate and timely information regarding industry shipments. Having this information and the resulting reports helps both the Committee and the industry make better decisions.

This rule offers the potential for cost savings. Under this change, the Committee and the industry have access to more current information. The Committee is able to use this data when considering marketing research and promotion funding and activities. The industry can use the information to improve marketing decisions. Having access to information that is more current should help the industry balance supply with demand, thus reducing periods of oversupply and price variations. Even the slightest increase in price would more than compensate for any costs related to these changes.

These changes also are expected to reduce assessment collection costs for the Committee. By removing the option to be billed for assessments, the Committee is saving both employee time and postage. This rule may also lower compliance costs for the Committee. By reducing the number of handlers that are reporting late, the Committee cuts costs associated with identifying these handlers. This should decrease the overall number of compliance cases.

In addition, increasing the interest applied to late assessments helps curtail the volume of delinquent assessments. Such a reduction also eases staff and mailing costs directed toward collecting past due assessments.

This rule will have a positive impact on affected entities. The changes were recommended to improve available industry information, facilitate assessment collection, and to reduce costs. The availability of more timely and accurate industry information will benefit both large and small handling operations. The changes this rule makes in terms of assessment collection mean that all handlers are assessed the same way, with their assessments due at the same time. The reduction in Committee costs is also expected to benefit all handlers regardless of their size. Consequently, the opportunities and benefits of this rule are expected to be equally available to all.

An alternative to the actions recommended by the Committee was considered prior to making the final recommendations. The alternative considered was implementing a mandatory inspection program under the marketing order. However, the Committee recognized this alternative would require amending the order and take further time to implement. While not ruling out this alternative in terms of future action, the Committee believed the recommended actions give them a more timely solution while they consider other alternatives.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS obtained emergency approval for a new information collection request under OMB No. 0581-NEW for Vidalia Onions Grown in Georgia, Marketing Order No. 955. The emergency request was necessary because insufficient time was available to follow normal clearance procedures. This information collection will be merged with the forms currently approved for use under OMB No. 0581-0178 “Vegetable and Specialty Crops”, and replaces the existing FV-181 “Vidalia Onion Handler Report Form.”

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The Committee's meeting was widely publicized throughout the Vidalia onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 6, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

An interim final rule concerning this action was published in the Federal Register on June 20, 2002. Copies of the rule were mailed by the Committee's staff to all Committee members and Vidalia onion handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. That rule provided for a 60-day comment period, which ended August 19, 2002. No comments were received.

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

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (67 FR 41811, June 20, 2002) will tend to effectuate the declared policy of the Act.

The Oil Pollution Act of 1990 (OPA 90) Public Law 101-380, directed the Coast Guard to promulgate a number of regulations, including a variety of standards for the design and operation of equipment to reduce the number and severity of tank vessel oil spill incidents. Section 4110 of OPA 90 mandates that the Coast Guard: (1) Establish standards for devices that measure oil levels in cargo tanks or devices that monitor cargo tank pressure level, and (2) issue regulations establishing requirements concerning the use of these devices on tank vessels carrying oil or oil residue as cargo. Functionally, these tank level or pressure monitoring (TLPM) devices measure changes in cargo volume, thereby detecting possible oil leaks into the marine environment.

In May of 1991, the Coast Guard published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM)(56 FR 21116) that solicited public comments relating to TLPM devices on tank vessels carrying oil. We received 20 comments.

In August of 1992, the Volpe National Transportation Systems Center completed a feasibility study (Volpe study) on TLPM devices. Then, in January of the following year, we made this study available to the public for comment by publishing a notice of availability (58 FR 7292).

As announced in a notice of public meeting (59 FR 58810), we held a public meeting at Coast Guard Headquarters in December of 1994 to discuss this rulemaking. This meeting gave the public an opportunity to provide further input into the development of the proposed regulations. As a result of the public meeting nine comments were received.

In 1995, we proposed a regulation that set minimum standards for leak detection devices (60 FR 43427). Upon review of the Volpe study and the risks of oil spills, we determined that the minimum detection threshold for such devices should be the lesser of either 0.5 percent below the quantity to which the tank was loaded or 1,000 gallons, which matched the criteria for an inland medium and coastal minor oil spill. This notice of proposed rulemaking received 10 comments.

In 1997, we published a temporary rule [62 FR 14828 (March 28, 1997)] establishing the minimum standards for TLPM devices. In the temporary rule, we requested the submission of TLPM devices that could meet the performance standard set out in the rule. The Coast Guard would have evaluated the submitted TLPM devices to ensure that they met the performance standards required by the temporary rule. We would have assessed the costs and benefits associated with any devices that met this performance standard to support decisions regarding implementing use requirements. At the time the rule expired in April 1999, no devices had been submitted to us for evaluation.

In 1999, Bluewater Network and Ocean Advocates brought suit in the U.S. Court of Appeals for the District of Columbia Circuit. In their suit, the petitioners asked the Court for a Writ of Mandamus ordering us to promulgate TLPM regulations. In December of 2000, the Court agreed with the petitioners on this item and directed the Coast Guard to promptly promulgate regulations setting TLPM standards and requiring use of TLPM on tank vessels.

On October 1, 2001, we published a notice of proposed rulemaking (NPRM) entitled Tank Level or Pressure Monitoring Devices in the Federal Register (66 FR 49877). Within that notice of proposed rulemaking, we presented a minimum performance standard and eight proposed regulatory options, and corresponding regulatory text for each option, regarding the use of TLPM devices on single-hull tank ships and single-hull tank barges carrying oil as cargo. A public meeting was held on November 6, 2001, in Washington, DC. As a result of the notice and public meeting, we received 129 letters commenting on the proposal.

The purpose of TLPM devices is to reduce the size and impact of oil spills by alerting the tank vessel operator that an accidental discharge of cargo oil is occurring. In the NPRM [October 1, 2001 (66 FR 49877)], the Coast Guard proposed removing the temporary regulations of Subpart 32.22T-Tank Level or Pressure Monitoring Devices found in 46 CFR part 32. We proposed removing this subpart because the effective period of the standard has passed. We also proposed adding new, permanent performance and use standards for tank level or pressure monitoring devices in 33 CFR parts 155 and 156. The new standards we proposed included regulating the installation and operation of TLPM devices on cargo tanks on U.S. and foreign-flag single-hull tank ships and tank barges carrying oil or oil residue as cargo. Section 4110(b) of OPA 90 (Pub. L. 101-380) authorizes the Coast Guard to require the use of TLPM devices on U.S. and foreign-flag vessels constructed or adapted to carry oil in bulk as cargo or cargo residue on the United States navigable waters or exclusive economic zone.

We did not propose requiring the use of TLPM devices on double-hull vessels. These TLPM devices are intended to warn the operators of possible loss of cargo oil into the water due to leaks they might otherwise not notice from cargo tanks. As stated in previous notices, double-hull vessels are intrinsically designed to prevent this type of discharge, having a redundant tank boundary. Therefore, the proposal exempted double-hull tank vessels.

During the development of the proposal, we examined the impact of this rule on single-hull tank ships and single-hull tank barges. The regulatory analysis for this rule showed that of all single-hull tank vessels, barges caused most of the oil spills where TLPM devices would have been effective on single-hull tank vessels. In fact, out of the 27 oil spill incident cases, 20 incidents were from tank barges, with only seven from tank ships. In these 27 cases tank barges contributed 75 percent of the amount of actual oil spilled. Additionally, a majority of current tank barges will be in existence for much longer than will tank ships. Approximately 91 percent of the single-hull tank barges will be allowed to operate after 2010, compared to 54 percent of the tank ships. (All single-hull tank vessels will be phased-out by 2015.) Furthermore, section 4110 of OPA 90, which requires the installation and use of TLPM devices, was added in part as a result of an oil spill from a barge resulting in the spill of 4,000 barrels of oil during a night transit in the Chesapeake Bay.

Even though the 27 oil spill incident cases revealed that tank barges spilled more oil than tank ships, tank ships, on the other hand, present a greater potential for leaking great quantities should a leak occur. A one percent leak from a typical tank ship translates to approximately 36,078 gallons (859 barrels). In comparison, a one percent leak from an average tank barge is 4,536 gallons (108 barrels).

To allow for the maximum flexibility to meet the regulatory and statutory intent, we proposed in the NPRM eight regulatory options that reflect all the reasonable approaches we have examined in developing this proposed regulation. The eight options were designed to be performance based. In developing them, we assumed that this rulemaking will apply only to single-hull tank vessels with a TLPM device that will detect a one percent change in cargo volume.

Each of the eight options was categorized under one of four alternatives (two options per alternative). The alternatives indicated the possible affected vessels. The options indicated either a three-year or a five-year phase-in period for the affected vessels. Any earlier period would place undue financial and logistical burden on industry. Any period beyond five years would reduce benefits in protecting the environment from oil spills before the single-hull tank vessels are phased out. Therefore, the options were characterized by the affected single-hull tank vessel type and the installation phase-in of TLPM devices with the one percent performance standard.

The following table outlines the eight proposed options.

The one percent performance standard required TLPM devices to alarm when the quantity of the cargo oil increases or decreases by one percent. With this standard in place, we would be able to detect oil spills of approximately 859 barrels and 108 barrels from a typical tank ship and tank barge, respectively.

As previously stated in this final rule, the Coast Guard received several comment letters addressing our prior NPRM. None of the comments received address our proposal to remove the temporary regulations of Subpart 32.22T—Tank Level or Pressure Monitoring Devices found in 46 CFR part 32. We are removing the temporary regulations of Subpart 32.22T. After consideration of all the comments received, we have elected to implement Alternative Three, Option Two (all single-hull tank vessels, 5-year implementation).

From the comments we received from the NPRM and the lack of the response from the manufacturers during the affective period of the temporary rule, the Coast Guard acknowledges that there are no TLPM devices being marketed. However, as discussed in the regulatory analysis, devices capable of measuring cargo levels are being manufactured. Properly modified, these devices would be able to meet the requirements established by this rulemaking. The actual type of system designed and installed is dependent on the manufacturer of the system and the vessel operator.

The Coast Guard received 129 letters commenting on the NPRM [October 1, 2001 (66 FR 49877)]. Seventy-two of those letters were copies of the same form letter. Also, some comments were iterated or similarly addressed in other comment letters. When considering all of the comments submitted, we gave each comment received the same degree of consideration. Comments that were submitted in multiple do not receive priority over a comment that was submitted only once. We present the following responses to each comment that addressed our proposed rule.

The majority of the comments express support for adding permanent performance and use standards for tank level or pressure monitoring devices in 33 CFR parts 155 and 156. The comments have been grouped in specific topics related to this rulemaking.

The applicability requirements of this rule were addressed within 96 of the comment letters. We received comments stating that we should expand our applicability requirements to include vessels with double hulls, while other comments supported exempting them from the TLPM requirements. One argument cited in several comments interpreted “tank vessels” as used in section 4110(b) of the Oil Pollution Act of 1990 as including both single-hull and double-hull vessels. The Coast Guard disagrees. Although there is legislative history to support the proposition that not all tank vessels must be equipped with the device, there is nothing in the law and legislative history describing that double-hull tank vessels were intended to have the device. These TLPM devices are intended to warn the operators of possible loss of cargo oil from cargo tanks due to leaks they might otherwise not notice. As stated earlier, double-hull vessels are intrinsically designed to prevent this type of discharge. Therefore, this final rule will apply only to single-hull tank vessels, exempting double-hull tank vessels.

One comment requested that vessels with type-2 and type-1 location requirements that have a Certificate of Fitness be exempt from this rule. The Coast Guard disagrees. Type-2 and type-1 vessels are not considered double-hull vessels, nor would they offer the same level of protection. Therefore, type-2 and type-1 vessels are subject to TLPM requirements.

We received two comments concerning the applicability of the rulemaking based on the vessel's flag-state. One commenter believes that this rulemaking should be incorporated into our “good neighbor policy” toward other nations that are subject to pollution from ships registered in the United States. The other comment states that the proposed rule was not specific enough as to whether this rule applies to foreign-flag vessels all of the time or only when it is in the navigable waters of the U.S.

These regulations apply to tank vessels that operate in the navigable waters of the United States and the exclusive economic zone, consistent with international law. The TLPM requirements apply to U.S. single-hull tank ships and tank barges carrying oil or oil residue as cargo no matter the location. Foreign-flag single-hull tank vessels carrying oil or oil residue as cargo are required to meet the TLPM requirements whenever they are operating in the waters set forth above when bound for a port or place within the jurisdiction of the United States.

One comment recommended that bitumen carriers be exempt from these requirements. Bitumen is a mixture of tar-like hydrocarbons derived from petroleum. Black or brown, it varies from viscous to solid; the solid form is usually called asphalt. As detailed in 33 CFR 155.490(d), asphalt carriers are exempt from this requirement.

We received comments arguing that retrofitting TLPM devices on oceangoing vessels costs less than retrofitting the devices on inland tank vessels. Because of the retrofitting cost differential between these tank vessel types, the commenters recommended that we develop cost effective performance standards for inland tank vessels. The Coast Guard disagrees. An inland oil spill will potentially have a greater environmental impact than out at sea. Relaxing the requirement for inland tank vessels will not provide the same level of protection as ocean-going tank vessels. Case analysis revealed that most spills for which TLPMs would have been effective were inland spills.

We received 82 letters addressing the phase-in period for vessels required to install TLPM devices. Half of the commenters specifically recommended codifying proposed Alternative Three, Option One, meaning all single-hull tank vessels installing TLPM device within a three-year phase-in period. The remainder of commenters promoted a five-year phase-in period to provide the necessary flexibility for a vessel to integrate scheduling installation of the devices during the vessel's normal shipyard cycle.

This rulemaking sets the installation date at five years from the effective date of this rule. Currently, no devices meet the performance standards established by this rulemaking. The rationale of the five-year phase-in period is to provide industry manufacturers time to test a device that will meet the performance standards of this rule in a dynamic sea state and to give each owner of single-hull tank vessels time to schedule installation of the TLPM device during normal shipyard cycles.

We received 86 comments requesting the Coast Guard to qualify its authority and reasoning for requiring single-hull tank vessels to equip each tank on the vessel with a TLPM device. Commenters pointed out that if a tank ship were involved in a collision, allision, or hard grounding and as a result of the casualty the vessel's cargo was flowing out of a damaged tank, the TLPM devices will not provide the crew with any additional information about the tank and its cargo. Another commenter stated that a TLPM device would not prevent cargo from leaking out of a vessel's tank. We agree with both comments. The purpose of TLPM devices is not to stop a leak, but to inform the crew of a cargo leak from a tank otherwise not noticed, and so that spill abatement procedures can be initiated. The requirement is for an alarm to actuate when the cargo tank level has increased or decreased by one percent. Large flow rate spills are not likely to be helped by the use of the TLPM equipment. Requiring the use of a TLPM device does not replace the standard practices associated with tank vessels or the good seamanship practices. It is up to the vessel's master to deem which actions are appropriate responses to the alarm's actuation.

Commenters acknowledged that the Coast Guard has been ordered by the U.S. Court of Appeals to promptly satisfy the statutory mandates of section 4110 of the Oil Pollution Act of 1990. While they support the ideas of requiring leak detection of cargo tanks on tank vessels, the respondents believe that both the IMO and the Coast Guard have already promulgated rules addressing the statute. The Coast Guard disagrees. Both the U.S. Court of Appeals and Section 4110 are clear on the specific requirements the Coast Guard shall implement. Currently there are no other regulations or rules regulating TLPM devices, even though there are rules and regulations concerning overfill devices, high level alarms and cargo gauging systems, however, none of these provide the functionality of a TLPM device.

Additional commenters questioned the Coast Guard's interpretation of the statute. The statute says that the Coast Guard is to issue regulations establishing requirements concerning the use of devices that measure oil levels in cargo tanks or devices that monitor cargo tank pressure level. The respondents addressed the wording of the statute by saying that it does not say “require the use” or “require the installation of”. The respondents believe that because the statute mandates the development of regulations “concerning the use” of a TLPM device, the Congress did not intend to require the installation and use of these devices. The Coast Guard disagrees. There is nothing in the act itself or the legislative history that would support such interpretation. In fact, the legislative history is to the contrary, supporting the installation of TLPM devices on tank vessels.

We also received 107 comments addressing the performance standards. Several of the commenters pointed out their inability to locate a monitoring device that will satisfy the requirements of this rule. The comments continued by stating that the leak detection standard should be written in a way that would help to avoid false alarms. One comment suggested requiring an alarm to sound if the level in any cargo tank drops three percent over a period of 30 minutes. The respondent believes that this requirement would help to prevent false alarms. Another comment recommended developing a monitoring standard that is not based solely on measuring the percentage of the cargo in the cargo tank. The respondent believes that this type of measurement lends to false alarms. One comment detailed scenarios, such as draft restrictions en route to the discharge port or specific gravity of product, limiting the amount of cargo loaded into any tank, resulting in the need to reset or recalibrate each tank loaded. The respondent argues that this would be time consuming and has the potential of creating errors. Another comment stated the unlikelihood of obtaining the required accuracy by averaging liquid level data with computer software. The respondent believes that such a system would be dependent upon perfectly tight tanks, because even the slightest leak would compromise the effectiveness of the system.

Since no TLPM device currently exists that meets our standards the actual type of system designed and installed is dependent on the manufacturer of the system and the vessel operator. We believe that the various concerns expressed in the comment letters, such as false alarms, cargo tank re-calibration, and accuracy requirements can be addressed through the system design.

In the NPRM we proposed that the TLPM device must be able to properly function in a heavy sea state. We received comments addressing this standard. One comment recommended that we define “heavy seas”. Another comment asked us to develop a test case for operation in heavy seas. Commenters urged that the leak detection device must be able to make calculative adjustments for operating conditions and tank environments, such as cargo sloshing, changes in barometric pressure, and vapor space temperature. One of the respondents suggested basing the software used to detect these changes on the Finite Element Method modeling and study.

The Coast Guard agrees that “heavy seas” is not an explicit sea condition. To clarify the intent of our standard, we have replaced the phrase “heavy seas” with “sea state 5” as defined in The American Practical Navigator, commonly known as Bowditch. We will also add to our regulations a definition for sea state 5 so that the sea condition by which a TLPM must properly operate is clearly understandable.

We received comments addressing the proposed requirements for audible and visual alarm indicators that must be distinctly identifiable as cargo tank level or pressure monitoring alarms that can be seen and heard on the navigation bridge of the tank ship or towing vessel as well as on the cargo deck area. One comment suggested that the alarm for inland tank barges should be a simple visual strobe light that can be seen from the bridge of the towing vessel. The comment also recommended that the visual strobe light alarm should be powered by replaceable batteries, possible using a wireless system. Another comment recommended that inland tank barges without a normal source of power be allowed to use an alarm for all tanks on the barge and allowed to use a common shore alarm receptacle.

We also received comments requesting guidance on how a signal from a tank barge will be transmitted to the vessel towing the barge. One comment urged the Coast Guard to develop a communication standard from existing standards. Another comment suggested a radio signal as a possible method of an unmanned barge to communicate with the alarm on the towing vessel. Still another comment acknowledged the possible use of cable connections. This respondent also pointed out that it would be extremely difficult to ensure a reliable dry connection that will remain connected through out the entire voyage.

Another comment urged the Coast Guard to develop training requirements for crewmembers on a towing vessel. The comment stated that during a single voyage it is common practice for a barge to be towed by several different towing vessels. The respondent argues that not all of the crew of those different towing vessels will be trained to operate the various components of each TLPM manufactured, nor will all of the devices be compatible with one another.

The requirement remains the same as stated in the NPRM. An audible and visual alarm indicators must be distinctly identifiable as cargo tank level or pressure monitoring alarms. The alarms must be seen and heard on the navigation bridge of the tank ship or towing vessel as well as on the cargo deck area. The requirement is to have an alarm to indicate to the vessel's master that there is the potential cargo tank leak. The basic design of this indicator and its system are to be determined by the manufacturer of the device and the vessel operator. Enhancements or variations to the system, such as its ability to be compatible with multiple leak detection indicators and others cited above, are left to the discretion of the manufacturer of the device or the operator of the vessel.

One comment urged the Coast Guard to set testing standards by which the operator of a vessel can test the TLPM device and the alarm system to ensure that it is properly working. The respondent also urged that we set procedures for the operator of the vessel to follow when responding to the actuation of a leak detection alarm. We disagree with the suggestions. The master will deem which actions are appropriate to perform whenever an alarm is actuated, using standard practices of good seamanship.

We received 21 comments expressing concerns for the safety of a towing vessel and its crew when responding to an alarm that had been activated by a TLPM device on a tank barge being towed by the vessel. One issue raised was the risk to navigational safety posed by a distracted wheelman trying to navigate bridges or narrow channels while attempting to monitor as many as 100 leak detection indicators warning of the potential cargo tank leak. Another issue raised was the risk of collision and injury when maneuvering the towing vessel alongside a barge in order to place a crewmember on board the barge to check for the presence of a leak. A third comment plainly stated that no company should risk the lives of its crew by placing a repair team or investigation team on board a barge.

The alarm requirement remains the same as stated in the NPRM. The Coast Guard agrees that the safety of a vessel's crew should always come first when evaluating how to best respond to any alarm. An audible and visual alarm indicator must be distinctly identifiable as cargo tank level or pressure monitoring alarm. The alarm must be seen and heard on the navigation bridge of the tank ship or towing vessel as well as on the cargo deck area. The requirement is to have an alarm to indicate to the vessel's master that there is the potential cargo tank leak. Once the alarm is actuated, it is up to the vessel's master to deem which actions are an appropriate response.

We received a comment concerned about the numerous risks associated with supplying power to a tank barge. Since no TLPM device currently exists that meets our standards, the actual system designed and installed is dependent on the manufacturer of the system and the vessel operator. In the NPRM, we assumed that these devices on a barge to be battery powered, such as the batteries used to provide power for navigation lights. However, we did not mandate that power come from a battery.

We received 249 comments addressing the costs and benefits detailed in the regulatory analysis of this rulemaking. One comment disagreed with the analysis including economic costs for foreign vessels. The respondent believes by including these costs the cost-effectiveness contains inflated values. The respondent recommended that the cost assumptions and cost-effectiveness criteria be revised.

Within the same comment letter, the respondent urged that we include the benefits of reducing oil spillage from foreign ships in the U.S. waters. The respondent recommended including the benefits in the cost-effectiveness data, despite their prior recommendation to delete the foreign-flag vessel data. The respondent plainly recommended that the methodology used to calculate the cost-effectiveness be corrected.

The purpose of the regulatory analysis is to estimate the impact of the rule on society. It is reasonable to assume that the costs incurred by foreign-flag vessels operating in U.S. water will eventually be passed on to consumers in the U.S. through the price of goods brought to our ports on a foreign-flag vessel. Regarding the benefits, this rule will be enforced on international vessels while transiting U.S. waters, and it is reasonable to expect a reduction of oil spilled into our waters by foreign-flag vessels.

Another comment addressed assumptions made about foreign-flag vessels. The respondent believed that the analysis should not use labor rates of the U.S. to calculate cost for a foreign-flag tank vessel to install a TLPM device. We disagree. Labor rates of other countries vary too greatly to suggest a global labor rate. We used the labor rates of the U.S. as the best proxy available. We consider this assumption to be reasonable.

We received comments objecting to what one respondent called “devastating real-world impacts” on the single-hull tank vessels and their companies. One commenter said he could not accept the cost of installing a TLPM device on his fleet, which is scheduled for retirement from service. He believes that these costs will not be recovered from the companies expected earnings before his fleet is retired.

Our regulatory analysis shows that this rule is costly to the maritime industry. As mandated by the Court and section 4110(b) of OPA 90, we must establish regulations concerning the installation and use of TLPM devices.

Some commenters were more specific with their cost estimates for this rulemaking on the single-hull tank vessel owner. One commenter believes that the costs would be $20,000 per cargo tank for the device, equipment, and installation. Other commenters believed that the cost estimates generated in the regulatory analysis for the device, equipment, and installation were too low, whereas still other commenters believed that our cost estimates were accurate.

Of all the cargo level measuring devices that could meet the requirements of this rule when properly modified, we priced each device then disregarded the most and least expensive devices. We developed our cost estimate by identifying the mean cost of the remaining devices. Therefore, our cost estimate fell in the center of the price range of the devices.

One comment stated the higher one (1) percent accuracy standard for each TLPM device equates to more expensive equipment. The comment went further by stating the higher accuracy standard also increases the chances of false alarms. The comment recommended that a 1 percent standard be imposed on tank ships and a three (3) percent standard be imposed on tank barges.

The Coast Guard disagrees with this comment. In our analysis we found that the costs of TLPM devices that could meet the requirements of this rule with an accuracy of 3 percent versus 1 percent to be essentially equal. Specifically, the cost to a tank barge for purchasing the device and equipment and having it installed will not differ if the device has an accuracy standard of either 3 or 1 percent. We elected to require the 1 percent standard due to the added benefits this standard brings to the environment. As far as the potential for the 1 percent standard to cause a greater number of false alarms, no such device exists to our knowledge. Therefore, the design of the device and its effectiveness is to be determined by the vessel operator and the manufacturer of the TLPM device. Such concerns could and should be taken into consideration during the development of such devices.

We received three comments requesting that additional analysis be incorporated into the regulatory evaluation of this rulemaking. The first comment wished to include in our benefits the oil spills that may be prevented in a worst-case scenario where a captain's unawareness of a leak on board his vessel may cause the loss of the entire vessel, cargo and crew. We disagree with the comment. The purpose of this rulemaking is to provide early detection of leaks coming from single-hull tank vessels. Installing and using a TLPM device will not prevent worst-case casualties. Having an alarm will not provide new information to the crew of a vessel suffering a catastrophic casualty. Therefore, the benefits of this rule can only be estimated for cases where TLPM devices provide early indications of potential cargo leaks that lead to a reduction of oil spilled.

One of the comments wanted the costs of this rule to be viewed in a context of the costs of all rules mandated by OPA 90 as a whole. We agree that this comparison should be part of the regulatory analysis. The comparison can already be found in the “Regulatory Evaluations” sections of the NPRM and in this final rule.

The third comment requested the cost associated with equipping or configuring an electrical power supply on tank barges be included in the analysis. We agree that these costs should be included in the cost and benefit analysis of this rulemaking, which is why we included them in our analysis. These costs can be found in the analysis for the proposed rule, which is part of the docket for this rulemaking. The data will also be placed in the final regulatory analysis for this final rule and will also appear in the DMS docket for review.

One commenter believed that a computer would have to be installed as a component of the TLPM device for this rulemaking to be successful. The commenter said that a computer would be able to detect all variables and conditions both on and off of the vessel to accurately calculate the contents of the tank. The commenter believed this is the only way to succeed, and that we should adjust our analysis to include the costs for a computing component in each TLPM device. The Coast Guard disagrees with this comment; designing TLPM devices with computers may not be the only design. Seeing that no TLPM device that meets our standards currently exists, the actual type of system designed and installed is dependent on the manufacturer of the system and the vessel operator.

In addition, we are not revising our analysis to include the cost for a computer component on all TLPM devices. Our analysis looks at the costs of several sensors that could be modified with “off the shelf components” to meet the requirements of this rulemaking. We disregarded the most expensive and the less expensive device assuming that consumers would not purchase either of them. We averaged the costs of the remaining devices and performed our analysis using the device closest in cost to the mean cost of the devices as a basis. The device we used as a basis did not have a computer component.

We received a few comments that touch on issues not directly related to the requirements and analysis proposed in the NPRM. One comment requested that we set a moratorium on our proposed rule and allow the industry to prepare for the replacement of single-hull tank vessels with double-hull tank vessel by 2015. Two comments explained that retrofitting TLPM devices on single-hull tank vessels that are scheduled for retirement might result in earlier retirements of the vessels. Early retirement, says one of the commenters, would create a tonnage shortage that may impact the nation's commerce and its security. The commenter presented data from the Shipbuilders Council of America. The data claims that by the year 2004, 28 percent of existing tank vessel capacity, and 45 percent of all large ocean-going tank barge capacity will be lost.

We considered these comments, but are constrained by the Court to establish regulations concerning the installation and use of TLPM devices. The data attributed to the Shipbuilders Council of America is based on Maritime Administration (MARAD) data that reflects a subset of the population that this rulemaking will affect. In particular, that data only includes tank vessels over 10,000 dead weight tons (DWT). Our phase-out data includes tank vessels of all sizes.

We received a comment noting that our summarization of the Intertanko decision from the Supreme Court, found in the Federalism section in the NPRM preamble, omitted discussion of the savings clause regarding liability requirements under OPA 90. We note that this was omitted merely because it is inapplicable to the subject matter of this rule.

We received a comment from a mariner who has installed video cameras to monitor the respondent's fleet and facilities for security. The respondent asked if this monitoring system would satisfy our TLPM requirement. While this may be good practice, the monitoring system described would not satisfy our requirements because it presents many of the same visibility problems that occur by just looking out at the wake of the vessel. TLPM devices, however, would not be faced with problems of visibility.

This rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. The Office of Management and Budget has reviewed it under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of the Department of Transportation [44 FR 11040, (February 26, 1979)]. A final Assessment is available in the docket as indicated under ADDRESSES . A summary of the Assessment follows:

When fully implemented, the measures outlined in this notice should reduce environmental and property damages resulting from oil pollution. The net cost-effectiveness of the rule is approximately $190,000 per barrel of pollution avoided. This means that it will cost society approximately $190,000 to keep each barrel of oil out of the water.

The present value of the total cost over the 12-year period of analysis (2003-2014) is approximately $166.4 million. All the costs will be incurred during the five-year phase-in period. We realize that there may be incidental costs incurred after the phase-in period, but we consider these to be de minimis .

Over the 12-year period of analysis, we estimate that TLPMs would help reduce the amount of oil spilled in U.S. waters. The benefits derived for this rule is 874 barrels of oil not spilled.

It is useful to compare the cost, benefit, and cost effectiveness of this rule with other rulemakings mandated by the Oil Pollution Act of 1990. The Coast Guard published over 40 rules in the 1990s under OPA 90. Once the majority of these rules were in place, the Coast Guard conducted a Programmatic Regulatory Assessment (PRA) to analyze the multiple effects of these rules on marine safety and the environment. We selected a “core group” of 11 of the most important and significant OPA 90 rules to serve as a proxy for the entire suite of rules. The PRA assessed cost effectiveness of the core group by accounting for the overlapping effects of these rules. Without addressing these overlapping effects, we would have double-counted the true benefit and effect of these 11 significant rules. As with this rule, benefit was estimated as the barrels of oil not spilled or spilled and recovered from the marine environment.

The cost (Present Value $1996), benefit (PV barrels), and cost-effectiveness (PV $/barrel) of the 11 core group rules is presented in the table below:

When compared to the other major OPA 90 rulemakings, this rule is less cost-effective. The overall cost effectiveness of the 11 core group rules in OPA 90 is approximately $8,700 per barrel not spilled. The cost effectiveness of this rule is $190,000 per barrel in 2002 dollars ($168,330 per barrel expressed in 1996 dollars). We estimate that the amount of oil prevented from entering the environment due to the 11 major OPA 90 rulemakings is 1,221,000 barrels over the period of analysis (1996-2025). The amount of oil we estimate that will be prevented from entering the environment due to this rule is 874 barrels over the period of the analysis. In percentage terms, the pollution that will be averted due to this rule represents less then one tenth of one percent of the total pollution averted from the 11 major OPA 90 rulemakings.

When comparing this rule to the cost and benefit estimates above, caveats should be noted. The assessment period for the OPA 90 PRA was 1996-2025, while the assessment period for this rule is 2003-2014. This is not overly problematic because after 1 January 2015, the rule will no longer affect single-hull vessels because they are scheduled to be phased-out by 2015. The cost and benefit of the rule after 2015, therefore, is expected to be zero. Extending the assessment period for the proposed rule to 2025 to align with the OPA 90 PRA would not noticeably change the results. Finally, the cost, benefit, and cost effectiveness estimates presented above represent an entire system of overlapping rulemakings. The cost effectiveness of each core group rule is the effectiveness when analyzed concurrently with all the other core group rules to assure benefit is not double-counted. For this reason, the overall benefit of the rule does not equal the sum of the benefits from all the rules because the amount of the overlapping benefit is not included in the individual benefit of the individual rule. The proposed rule is a stand-alone rulemaking and is analyzed as such.

A copy of the OPA 90 PRA is available in the docket [US Coast Guard, 2001. OPA 90 Programmatic Regulatory Assessment (PRA): Benefit, Cost, and Cost Effectiveness of Eleven Major Rulemakings of the Oil Pollution Act of 1990. Volpe National Transportation Center, May 2001.]

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

From our analysis (copy available in the docket), we conclude that requiring TLPM devices to be installed on single-hull tank vessels may have a significant economic impact on a substantial number of small entities. Consequently, by establishing a five-year phase-in period for the systems, we provide flexibility and accommodation for small entities affected. This gives small entities the time needed to explore markets, plan, and schedule installations during normal downtimes.

We estimate that 181 entities will be affected by this rule, 124 of which we consider to be small entities. Approximately 26 percent of the affected entities are in either petroleum wholesale or navigational services to shipping. The respective North American Industry Classification System codes are 422720 and 488330. We estimate that 55 percent of the small entities will have more than a 5 percent reduction in annual revenues during the installation of TLPM devices.

More details about the impacts of this rule on small businesses are discussed in the Final Regulatory Flexibility Analysis. As stated above, the Oil Pollution Act states that TLPM requirements must be established for tank vessels. As a result, we do not have the discretion to exempt small business tank vessel owners from the requirements of this proposed rule.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. The NPRM provided small businesses, organizations or governmental jurisdictions a Coast Guard contact to ask questions concerning this rule's provisions or options for compliance.

After the effective date of this rule, a small entity compliance guide will be made available in the public docket for this rulemaking project. The compliance guide will explain the required action of small businesses to comply with this final rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S. Ct. 1135 (March 6, 2000).) This rule on the performance standards and use of TLPM devices fall into the category of vessel equipment and operation. Because the States may not regulate within these categories, preemption under Executive Order 13132 is not an issue.

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

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

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

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

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

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

The distribution of petroleum in the U.S. is an efficient, but complex, system involving the movement of crude oil into U.S. refineries from domestic and foreign sources and the movement of product out of refineries, primarily by pipeline and tank vessels. In order to explain this critical issue, it is helpful to discuss the specific segments that comprise the national waterborne distribution system of petroleum.

The Maritime Administration describes the U.S. waterborne petroleum trade as five distinct and interrelated market segments: Domestic product tankers, coastal tank barges, domestic crude carriers, foreign tankers (imports), and inland tank barges.

Domestic product tankers compete with tank barges in medium haul (500-1,500 mile) coastal trades; product tankers supplement crude carriers in West Coast crude oil trades; and product tankers and tank barges lighter (transfer) cargoes from crude carriers to oil terminals. While tank barges compete with domestic product tankers in medium haul trades, they complement tankers and pipelines by transshipping products in short-haul trades.

Foreign product tankers compete indirectly with domestic product tankers through import trades, and provide product shipments to Middle Atlantic and Northeast states directly from a foreign port rather than from another domestic port. The Jones Act, which reserves U.S. coastwise shipments for U.S.-flag vessels, should not be viewed, therefore, as absolute protection for domestic product tankers.

Over the period 1994 to 1999, the role of pipelines, foreign tankers and coastal tank barges has grown significantly in U.S. petroleum trades. Based on recent pipeline upgrades, year-end 2000 newbuilding orders and OPA 90 phase-out schedules, these trends should continue over the next five years.

The primary domestic product tanker trades—U.S. Gulf/Atlantic, U.S. Gulf/West Coast, and intra West Coast have declined over the period 1994 to 1999. The declines can be attributed to a decline in Alaska crude oil production, increases in pipeline shipments, increases in product imports, increases in local refinery production of reformulated gas, and increases in medium-haul (500-1,500 mile) tank barge shipments. These trends are expected to continue over the next five years.

Product tanker freight markets have been efficient in allocating capacity to U.S. domestic and import trades. To meet their distribution requirements, oil companies have used foreign product tankers (imports) and/or domestic tank barges in lieu of domestic product tankers. The domestic product tanker fleet will continue to decline over the next five years reflecting an aging fleet, OPA 90 phase-out requirements, and high newbuilding prices/operating costs relative to charter rates.

The market for coastal tank barge services can be divided into two broad segments: Short-haul trades (< 500 miles), in which tank barge services complement tanker and pipeline services; and 500+ mile trades in which tank barge services substitute for tanker services. In 1999, long-haul ton-miles were about 3.5 times short-haul ton-miles.

Coastal tank barge traffic (ton-miles) will continue recent trends and grow at 2-3 percent per year over the next five years, reflecting fleet productivity increases and the substitution of large tank barges (10,000+ DWT) for product tankers in the 500+ mile coastal petroleum products trades.

The coastal tank barge fleet will not be significantly affected by OPA 90 double-hull requirements until 2005, when there will be a substantial impact (a decrease of 0.5 million DWT capacity) on the 10,000+ DWT fleet.

As of year-end 2000 there were nine large coastal tank barges (0.2 million DWT) on order for delivery in 2001 and 2002. For tank barges, the order book does not show deliveries beyond the next 2 years. There are, however, pending contracts for seven additional newbuildings and eight retrofits.

The Alaska crude oil trades are the primary source of demand for U.S. crude carriers. These trades are examples of “Industrial Shipping” in which shippers (oil companies) bear market risks by owning or time chartering tankers. In 1999, ninety-nine percent of the Alaska crude oil trades were controlled by oil companies or oil company affiliates. As a result, Alaska crude oil production, U.S. crude carrier capacity, and coastal crude oil traffic tend to move together over time.

Based on the Energy Information Agency's forecast for Alaska crude oil production, Alaska/U.S. West Coast crude oil trades will fall from 85 billion ton-miles in 1999 to 64 billion ton-miles in 2005, reducing crude carrier demand by about 500 thousand DWT or four 125,000 DWT tankers.

As of year-end 2000, there were eight newbuilding double-hull crude carriers (1.2 million DWT) on order, 0.2 million DWT more than the capacity scheduled to be phased-out under OPA-90 double-hull requirements by 2005. However, owners have typically retired crude carriers well before their OPA 90 phase-out dates. The average age of the 22 U.S. crude carriers removed from service in the last five years was 21-years, or an average of 4 years before their OPA 90 phase out dates. As of year-end 2000, 17 of the 21 active U.S. crude carriers were older than 21 years. Thus, it is reasonable to expect that owners will retire redundant crude carriers as newbuildings enter service.

The U.S. relies on the foreign-flag segment of the international tanker fleet to deliver virtually all of its petroleum imports. At year-end 2000, the foreign-flag tanker fleet eligible to operate in U.S. trades was about 237 million DWT, or 80 percent of the international fleet. This tonnage was eligible to operate in U.S. petroleum trades either because it had a double hull or had not yet reached its OPA 90 phase-out date. Over time, additional capacity will be reaching its OPA 90 phase-out date and dropping out of the U.S. petroleum trade. In the next five years, an additional 34 million DWT of foreign-flag capacity will become ineligible to operate in U.S. trades. There is no risk of any shortage of tankers available to serve U.S. import trades, however, because—

• Newbuilding deliveries have been about 20 million DWT per year in the late 1990s and should continue at about that rate over the next five years.

• Based on 2000 data, only 42 percent of the tanker capacity eligible for U.S. trades actually served U.S. trades. That is, there is a substantial pool of existing vessels that can move into U.S. trades; and

• Tankers calling at the LOOP (Louisiana Offshore Oil Port) and four Gulf of Mexico lightering areas are exempt from OPA 90 double-hull rules, though they would not be exempted from this rule. In 2000, 40 percent of the 150,000+ DWT foreign-flag tanker calls to the U.S. were at these five areas.

Inland tank barge capacity should decline by 1 to 2 percent per year over the next five years. The decline reflects an expected decline in inland tank barge traffic, fleet attrition, tank barge replacements tied to affreightment contracts (traffic), and fleet productivity increases ( i.e. , new barges are more productive, require less maintenance/drydocking time) than those they replace.

The expected decline in inland tank barge traffic (0.5-1.0 percent per year) reflects a substitution of natural gas (shipped by pipeline) for fuel oils (shipped by barge) by electric utilities.

In 1999, charter rates for inland tank barges were generally above full-employment, newbuilding breakeven rates. Charter rates should remain above full-employment breakeven rates over the next five years, reflecting fleet attrition, industry consolidation, and fleet replacement tied to freight contracts (traffic).

The comments we received to the NPRM did not lead us to believe that this rule is likely to have a significant adverse effect on the supply, distribution or use of energy. For a summary of the comments and Coast Guard responses, please read the “Discussion of Comments and Changes” section in this rule.

We specifically requested comments regarding the effect of this rule on niche markets. We wanted to know of any markets where there might be one small company serving the entire market, and what effect would be if that company dropped out of existence as a result of this rule. We did not receive comments addressing this concern. This along with our review of the distribution segments above, leads us to believe that this rule is not likely to have a significant adverse effect.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(d), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This final rule is categorically excluded because it concerns equipping tank vessels with tank level or pressure monitoring devices. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this temporary regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. While the Navy has been implementing many force protection measures since the attack on the U.S.S. Cole and the attacks of September 11, 2001, the Chief of Naval Operations has recently emphasized the need for the expanded use of anti-small boat barrier booms around Navy vessels in U.S. ports to protect against attacks similar to the one launched against the U.S.S. Cole. In addition, the Office of Homeland Security through its web site has described the current nationwide threat level as “Elevated.” According to the Office of Homeland Security, an Elevated Condition is declared when there is a significant risk of terrorist attacks. The Coast Guard believes that issuing an NPRM for this temporary rule and thereby delaying implementation of the expanded security zone would be against the public interest during this elevated state of alert.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the protection of the Naval vessels, their crew, and national security.

Furthermore, in order to protect the interests of national security, the Coast Guard is promulgating this temporary regulation to provide for the safety and security of U.S. Naval vessels in the navigable waters of the United States. As a result, the establishment and enforcement of this security zone is a function directly involved in and necessary to military operations. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation.

The Coast Guard has plans to make the expansion of the security zone permanent. Towards that end, the Coast Guard will initiate notice and comment rulemaking before issuing any final rule.

The Coast Guard is expanding the current security zone (33 CFR 165.1103) to allow the U.S. Navy to put an anti-small boat barrier boom at Naval Submarine Base San Diego. The expansion of this security zone is needed to ensure the physical protection of naval vessels moored in the area by providing adequate standoff distance. The expansion of this security zone will also prevent recreational and commercial craft from interfering with military operations involving all naval vessels home-ported at Naval Submarine Base San Diego and it will protect transiting recreational and commercial vessels, and their respective crews, from the navigational hazards posed by such military operations. In addition, the Navy has been reviewing all aspects of its anti-terrorism and force protection posture in response to the attack on the U.S.S. COLE and the terrorist attacks of September 11, 2001. The expansion of this security zone will safeguard vessels and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. Entry into, transit through, or anchoring within this security zone is prohibited unless authorized by the Captain of the Port, Commander, U.S. Naval Base San Diego, or the Commander, Submarine Force, U.S. Pacific Fleet Representative, West Coast. Vessels or persons violating this section would be subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: Seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years. The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.

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

The implementation of this security zone is necessary for the protection of the United States' national security interests. The size of the zone is the minimum necessary to allow for safe placement of the anti-small boat boom while providing adequate protection for U.S. Naval vessels, their crews, adjoining areas, and the public. The entities most likely to be affected, if any, are pleasure craft engaged in recreational activities and sightseeing in close proximity to the Naval Submarine Base. Any hardships experienced by persons or vessels wishing to approach the Naval Submarine Base are considered minimal compared to the national interest in protecting U.S. Naval vessels, their crews, and the public. The expansion of the security zone will not impact navigation in the shipping channel.

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

This security zone will not have a significant impact on a substantial number of small entities because these security zones are only closing small portions of the navigable waters adjacent to Naval Base San Diego. In addition, there are no small entities shoreward of the security zone. For these reasons, and the ones discussed in the previous section, the Coast Guard certifies, under 5 U.S.C. 605(b), that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with § 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Rick Sorrell, Chief of Port Operations, Marine Safety Office San Diego, at (619) 683-6495.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

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

We did not publish a notice of proposed rulemaking (NPRM) for this temporary regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. While the Navy has been implementing many force protection measures since the attack on the U.S.S. Cole and the attacks of September 11, 2001, the Chief of Naval Operations has recently emphasized the need for the expanded use of anti-small boat barrier booms around Navy vessels in U.S. ports to protect against attacks similar to the one launched against the U.S.S. Cole. In addition, the Office of Homeland Security through its web site has described the current nationwide threat level as “Elevated.” According to the Office of Homeland Security, an Elevated Condition is declared when there is a significant risk of terrorist attacks. The Coast Guard believes that issuing an NPRM for this temporary rule, and thereby delaying implementation of the expanded security zone, would be against the public interest during this elevated state of alert.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the protection of the Naval vessels, their crew, and national security.

Furthermore, in order to protect the interests of national security, the Coast Guard is promulgating this temporary regulation to provide for the safety and security of U.S. Naval vessels in the navigable waters of the United States. As a result, the establishment and enforcement of this security zone is a function directly involved in and necessary to military operations. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation.

The Coast Guard has plans to make the expansion of the security zone permanent. Towards that end, the Coast Guard will initiate notice and comment rulemaking before issuing any permanent rule.

The Coast Guard is expanding the security zone to allow the U.S. Navy to put in place an anti-small boat barrier boom at Naval Base Coronado. The expansion of this security zone is needed to ensure the physical protection of naval vessels moored in the area by providing adequate standoff distance. The expansion of this security zone will also prevent recreational and commercial craft from interfering with military operations involving all naval vessels home-ported at Naval Base Coronado and it will protect transiting recreational and commercial vessels, and their respective crews, from the navigational hazards posed by such military operations. In addition, the Navy has been reviewing all aspects of its anti-terrorism and force protection posture in response to the attack on the U.S.S. COLE and the terrorist attacks of September 11, 2001. The expansion of this security zone will safeguard vessels and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. Entry into, transit through, or anchoring within this security zone is prohibited unless authorized by the Captain of the Port, Commander, Naval Air Force, U.S. Pacific Fleet, the Commander, U.S. Naval Base San Diego, or the Commander, Naval Base Coronado. Vessels or persons violating this section would be subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years. The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.

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

The implementation of this security zone is necessary for the protection of the United States' national security interests. The size of the zone is the minimum necessary to allow for safe placement of the anti-small boat boom while providing adequate protection for U.S. Naval vessels, their crews, adjoining areas, and the public. The entities most likely to be affected, if any, are pleasure craft engaged in recreational activities and sightseeing in close proximity to the Naval Base. Any hardships experienced by persons or vessels wishing to approach the Naval Base are considered minimal compared to the national interest in protecting U.S. Naval vessels, their crews, and the public. The expansion of the security zone will not impact navigation in the shipping channel.

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

This security zone will not have a significant impact on a substantial number of small entities because these security zones are only closing small portions of the navigable waters adjacent to Naval Base Coronado. In addition, there are no small entities shoreward of the security zone. For these reasons, and the ones discussed in the previous section, the Coast Guard certifies, under 5 U.S.C. 605(b), that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with § 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Rick Sorrell, Chief of Port Operations, Marine Safety Office San Diego, at (619) 683-6495.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

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

The Veterans' Eligibility Reform Act of 1996, Public Law No. 104-262 (Eligibility Reform Act) amended title 38, United States Code, to authorize VA to provide needed inpatient hospital care and outpatient medical services to most veterans. That law also directs VA to establish a national patient enrollment system to manage the provision of that care and services. The law directs VA to enroll veterans for care in accordance with priorities set forth in the statute, and requires that most veterans formally enroll with VA in order to receive care from VA.

However, the law also specifically provides that the Secretary shall provide care to certain veterans without their needing to enroll. Included are veterans with service-connected disabilities rated 50 percent or greater and veterans needing care for a service-connected disability. Allowing those veterans to receive care without regard to enrollment effectively gives them priority over all other veterans. The legislative history of the Eligibility Reform Act also includes references to Congress' intent that these two groups of veterans, those with a very high claim to VA services, should have priority access to care.

VA established an enrollment system through rules promulgated at 38 CFR 17.36 and 17.37. Those rules provide that veterans with disabilities rated 50 percent or greater, and veterans needing care for a service-connected disability, need not enroll to receive care from VA. The rules do not, however, afford those two groups of veterans with special priority access to VA outpatient medical services or inpatient hospital care, as authorized by law. This interim final rule rectifies that matter and expressly provides for that priority access. Moreover, it provides such priority to these veterans regardless of whether they are enrolled in the VA health care system.

Since hundreds of thousands of our core constituency veterans are currently on waiting lists causing delays in their receiving treatment, we have found good cause to dispense with the notice-and-comment and delayed effective date provisions of the Administrative Procedure Act (5 U.S.C. 553). Compliance with such provisions would be impracticable and contrary to the public interest.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

The Secretary hereby certifies that this regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers for the programs affected by this document are 64.005, 64.007, 64.008, 64.009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.

Regulated Entities. Categories and entities potentially affected by this action include facilities currently required to obtain title V permits by State, local, tribal, or Federal operating permits programs.

World Wide Web (WWW). After signature, the final rule will be posted on the policy and guidance page for newly proposed or final rules of EPA's Technology Transfer Network (TTN) at http://www.epa.gov/ttn/oarpg/t5.html. For more information, call the TTN Help line at (919) 541-5384.

Outline. The contents of the preamble are listed in the following outline:

By enacting title V as part of the 1990 Act Amendments, Congress sought to enhance sources' compliance with the Act in two important ways. First, Congress required that every major stationary source of air pollution and certain other sources obtain a single, comprehensive operating permit to assure compliance with all emission limitations and other substantive Act requirements that apply to the source. 42 U.S.C. 7661a(a), 7661c(a). Second, Congress required that all title V sources conduct monitoring of their emissions that is sufficient to assure compliance with applicable requirements under the Act and also certify compliance with such applicable requirements. 42 U.S.C. 7661c(a), 7661c(c). The Senate Report summarized: “EPA must require reasonable monitoring * * * requirements that are adequate to assure compliance.” S. Rep. No. 101-228, at 350 (1989) (reprinted in 1990 U.S.C.C.A.N. 3385, 3733).

Three provisions of title V set forth Congress's requirements for monitoring by title V sources. Section 504(c) of the Act requires that each permit “shall set forth inspection, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. 7661c(c). Section 504(a) requires that each permit “shall include enforceable emission limitations and standards * * * and such other conditions as are necessary to assure compliance with applicable requirements.” 42 U.S.C. 7661c(a). Section 504(b) contains discretionary authority for EPA to prescribe by rule “procedures and methods for determining compliance and for monitoring * * *  ” 42 U.S.C. 7661(b). In addition, section 114(a)(3) directs EPA to require “enhanced monitoring” at all major stationary sources. 42 U.S.C. 7414(a)(3).

The EPA's title V regulations at §§ 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B) require that

Two opinions issued by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) have addressed the monitoring required of title V sources. Specifically, the court reviewed EPA's CAM rule in Natural Resources Defense Council v. EPA, 194 F.3d 130 (D.C. Cir. 1999) ( NRDC ), and reviewed EPA's periodic monitoring guidance under title V in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) ( Appalachian Power ). In NRDC, the Natural Resources Defense Council argued that the CAM rule was inadequate to meet the statutory mandate that all major sources be subject to enhanced monitoring because it excluded units without control devices, units below a 100-ton cutoff, and certain other categories. 194 F.3d at 135. 1 The court disagreed, and upheld the CAM rule and EPA's general enhanced monitoring program. 194 F.3d at 135-37. The court pointed out that certain sources exempt from CAM were subject to “other specific rules.” Id. 2 The court then reasoned that all other major sources were subject to one of two “residual rules” under part 70: either the periodic monitoring rule at § 70.6(a)(3)(i)(B), or the sufficiency rule at 70.6(c)(1). Id. at 135-36. The court recognized that “[w]hile the part 70 rules are not as specific as CAM, they have the same bottom line—a major source must undertake ‘monitoring * * * sufficient to assure compliance.”’ Id. at 136. 3

In Appalachian Power, a different panel of the D.C. Circuit set aside EPA's “Periodic Monitoring Guidance”  4 after finding that it had in effect amended part 70's periodic monitoring rule at § 70.6(a)(3)(i)(B) by interpreting that rule too broadly to cover situations where the underlying applicable requirement called for some kind of “periodic” testing or monitoring, but such monitoring was not sufficient to assure compliance. 208 F.3d at 1028. The Appalachian Power court held that in its current form, the periodic monitoring rule authorized sufficiency reviews of monitoring and testing in an existing emissions standard, and enhancement of that monitoring or testing through the permit, only when that standard “requires no periodic testing, specifies no frequency, or requires only a one-time test.” Id. The panel did not address the separate “sufficiency” requirement of § 70.6(c)(1) or the earlier decision in NRDC, except to note that it disagreed with EPA's argument that the court in the earlier decision read the periodic monitoring rule in the same way as the Agency. Id. at 1027 n. 26. The Appalachian Power court set aside the Periodic Monitoring Guidance, reasoning that the Guidance was “final agency action” that broadened the scope of the periodic monitoring rule without complying with the rulemaking procedures required by 42 U.S.C. 7607(d). Id. at 1023, 1028.

Following the NRDC and Appalachian Power decisions, EPA was called upon to clarify the scope of the title V monitoring requirements in two adjudicatory orders responding to petitions requesting that the Administrator object to title V permits under section 505(b)(2) of the Act. 5 In the Matter of Pacificorp's Jim Bridger and Naughton Electric Utility Steam Generating Plants, Petition No. VIII-00-1 (November 16, 2000) ( Pacificorp ) (available on the Internet at http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/woc020.pdf); In the Matter of Fort James Camas Mill , Petition No. X-1999-1 (Dec. 22, 2000) ( Fort James ) (available on the Internet at: http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/fortjamesdecision1999.pdf). Notice of these decisions was published in the Federal Register . See 66 FR 85, January 2, 2001 ( Pacificorp ); 66 FR 13529, March 6, 2001 ( Fort James ).

The first order, Pacificorp, responded to a petition in which Wyoming Outdoor Council requested that the Administrator object to two title V permits issued by the State of Wyoming. The petition alleged, in relevant part, that the permits, which required only a quarterly Method 9 visual observation, were deficient because they failed to assure compliance with the 20 percent opacity limit in the Wyoming State Implementation Plan (SIP). The Administrator's response summarized the monitoring requirements of the Act and part 70, quoting from sections 114(a)(3), 504(a) and 504(c), and from §§ 70.6(a)(3)(i)(B) and 70.6(c)(1). Id. The response then summarized the NRDC and Appalachian Power decisions. Pacificorp at 16-18. In particular, the Administrator observed that the NRDC panel had based its holding that EPA had satisfied the statutory mandates to require adequate monitoring for all permits at major sources on the two “residual rules” in part 70: §§ 70.6(a)(3)(i)(B) and 70.6(c)(1). Id. at 16-17 (citing NRDC, 194 F.3d at 135-37). She also observed that the Appalachian Power panel had held that § 70.6(a)(3)(i)(B) must be read narrowly to apply only when the underlying emission standard “requires no periodic testing, specifies no frequency, or requires only a one-time test.” Pacificorp at 18 (quoting Appalachian Power, 208 F.3d at 1028). Finally, she observed that the Appalachian Power panel did not address 70.6(c)(1), or the earlier decision in NRDC (except to note that it disagreed with EPA's contention that the NRDC panel had read § 70.6(a)(3)(i)(B) in the same broad fashion as had EPA). Pacificorp at 18 (citing Appalachian Power, 208 F.3d at 1028 n. 26).

The Administrator then set forth her understanding of the current monitoring requirements by harmonizing the NRDC and Appalachian Power decisions. Specifically, the Administrator stated that in light of those decisions, where an applicable requirement requires no “periodic” testing or monitoring at all, “section 70.6(c)(1)'s requirement that monitoring be sufficient to assure compliance will be satisfied” by meeting the more substantive requirements of § 70.6(a)(3)(i)(B). Where, in accordance with Appalachian Power, the latter periodic monitoring provision does not apply because there is some “periodic” monitoring but it is not sufficient to assure compliance, the “separate regulatory standard” in § 70.6(c)(1) governs instead and requires enhancement of existing monitoring “as necessary to be sufficient to assure compliance.” Pacificorp at 18-19.

Based on this understanding, the Administrator found that since the Wyoming SIP called for quarterly Method 9 visual readings, and this was “periodic,” then in accordance with Appalachian Power “the provisions of § 70.6(a)(3)(i)(B) do not apply.” She then found that such monitoring:

The Administrator subsequently responded to another citizen petition to object alleging numerous monitoring deficiencies in a permit issued by the State of Washington, the Fort James order. As in Pacificorp, the petition raised monitoring issues, and the Administrator ruled similarly. She explained that where it was clear that there was no underlying monitoring of a “periodic” nature, § 70.6(a)(3)(i)(B) applied and decided the claims accordingly. Where there was some underlying monitoring that could be considered periodic, she applied the general sufficiency standard in § 70.6(c)(1) and decided the claims on that basis. The petition was granted in part and denied in part. See Fort James at 5-9; 66 FR 13529, March 6, 2001.

This interim final rule responds to assertions by some industry representatives that the NRDC and Appalachian Power court decisions have created uncertainty and confusion on the part of some source owners and operators, permitting authorities and citizens as to the scope of the title V monitoring requirements. The EPA also is undertaking this interim final rule and the related actions described below consistent with the defense of pending litigation, Utility Air Regulatory Group v. EPA, No. 01-1204 (DC Cir.) ( UARG )  6 While EPA has harmonized the NRDC and Appalachian Power decisions to clarify the title V monitoring requirements in the Pacificorp and Fort James orders, some industry representatives and others have maintained that EPA's understanding as stated in the orders is based on an overbroad reading of §§ 70.6(c)(1) and 71.6(c)(1). Under EPA's current title V regulations, these parties have asserted, §§ 70.6(c)(1) and 71.6(c)(1) cannot be read to require “sufficient” monitoring where 70.6(a)(3)(i)(B) or § 71.6(a)(3)(i)(B) does not apply (e.g., where the permit already contains some monitoring that can be considered “periodic” but that is not sufficient to assure compliance with the permit's terms and conditions) because §§ 70.6(c)(1) and 71.6(c)(1) as currently written expressly provide that monitoring sufficient to assure compliance be “[c]onsistent with [70.6(a)(3) or § 71.6(a)(3)].” In short, these parties interpret this prefatory language to mean that §§ 70.6(c)(1) and 71.6(c)(1) must have the same limited meaning as §§ 70.6(a)(3) and 71.6(a)(3), respectively, because “consistent with [§ 70.6(a)(3) or § 71.6(a)(3)]” means “identical to the scope and content of [§ 70.6(a)(3) or § 71.6(a)(3)].” Under this view, §§ 70.6(a)(3) and 71.6(a)(3) require that inadequate but “periodic” monitoring must be accepted without enhancement.

The EPA disagrees with these assertions that the prefatory “consistent with” language limits the scope of §§ 70.6(c)(1) and 71.6(c)(1). Indeed, interpreting “consistent with” to mean “identical to” as some parties have suggested would render the second clause of §§ 70.6(c)(1) and 71.6(c)(1), which requires monitoring “sufficient to assure compliance,” superfluous, and would imply that the NRDC court's discussion of § 70.6(c)(1) was redundant. By contrast, EPA has reasonably interpreted “consistent with” to mean “compatible with [§ 70.6(a)(3) or § 71.6(a)(3)].” Under EPA's interpretation, §§ 70.6(c)(1) and 71.6(c)(1) are separate sources of regulatory authority from §§ 70.6(a)(3) and 71.6(a)(3), and §§ 70.6(c)(1) and 71.6(c)(1) independently require that all monitoring in title V permits be sufficient to assure compliance with the permits' terms and conditions. As EPA explained in the Pacificorp and Fort James orders, EPA believes that the “consistent with” language means that the broadly applicable, but bare sufficiency provisions at § 70.6(c)(1) [or § 71.6(c)(1)] will be satisfied by compliance with the substantive monitoring requirements of § 70.6(a)(3)(i)(B) [or § 71.6(a)(3)(i)(B)] where the latter periodic monitoring provision applies. In other words, where § 70.6(a)(3)(i)(B) [or § 71.6(a)(3)(i)(B)] applies, its more specific requirements (e.g., reliable data from the relevant time period that are representative of the source's compliance) are deemed sufficient to assure compliance, and where § 70.6(a)(3)(i)(B) [or § 71.6(a)(3)(i)(B)] does not apply, the general sufficiency requirement at § 70.6(c)(1) [or § 71.6(c)(1)] comes into play. See Pacificorp at 18-19; Fort James at 9.

The EPA's interpretation of the prefatory “consistent with” language in §§ 70.6(c)(1) and 71.6(c)(1) is a reasonable one and is indeed the better interpretation, because it gives meaning to the second clause of §§ 70.6(c)(1) and 71.6(c)(1), advances the statutory monitoring requirements, and harmonizes the NRDC and Appalachian Power decisions with each other. Nonetheless, EPA recognizes that further clarification through rulemaking would be useful. In addition, EPA has received numerous requests from permitting authorities and citizens requesting clarification of the title V monitoring requirements, including a letter from eighty-one environmental and public health organizations asking EPA to revise the part 70 regulations to address monitoring in light of the court's decision in Appalachian Power.

By promulgating this interim final rule, EPA is suspending, for sixty days, the underscored prefatory language to §§ 70.6(c)(1) and 71.6(c)(1) providing that all title V permits contain, “[c]onsistent with paragraph (a)(3) of this section, compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit.” The suspension of the prefatory language will expressly uncouple the sufficiency monitoring provisions, §§ 70.6(c)(1) and 71.6(c)(1), from the periodic monitoring provisions, §§ 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), and make more clear the regulatory distinction between the two sets of provisions. Specifically, the suspension will clarify the respective scopes of the periodic monitoring and sufficiency monitoring provisions, eliminating any possible confusion under the current regulations as to when a title V permit must contain monitoring sufficient to assure compliance. The EPA notes that despite this suspension, EPA is retaining its interpretation, set forth in the Pacificorp and Fort James orders, that where § 70.6(a)(3)(i)(B) or § 71.6(a)(3)(i)(B) applies, it satisfies the general sufficiency requirement of § 70.6(c)(1) or § 71.6(c)(1).

The suspension of the prefatory language codifies the understanding set forth in the Pacificorp and Fort James orders, where the Administrator characterized § 70.6(c)(1) as a “separate regulatory standard” from § 70.6(a)(3)(i)(B). The suspension is also consistent with the court's holding in NRDC that §§ 70.6(a)(3)(i)(B) and 70.6(c)(1) together ensure that a major source must undertake “monitoring * * * sufficient to assure compliance” where the CAM rule or other more specific rules governing major sources do not require such monitoring. 194 F.3d at 136. Finally, the suspension is consistent with the court's decision in Appalachian Power, which, as noted above, did not construe § 70.6(c)(1). See 208 F.3d at 1027 n.26.

Under this interim final rule, the periodic monitoring and sufficiency monitoring provisions will work together as follows. Where an applicable requirement does not require any periodic testing or monitoring, permit conditions are required to establish “periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit.” Sections 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). In contrast, where the applicable requirement already requires “periodic” testing or monitoring but that monitoring is not sufficient to assure compliance, the separate regulatory standard at § 70.6(c)(1) or § 71.6(c)(1) applies instead to require monitoring “sufficient to assure compliance with the terms and conditions of the permit.” Furthermore, where § 70.6(a)(3)(i)(B) or § 71.6(a)(3)(i)(B) applies, it satisfies the general sufficiency requirement of § 70.6(c)(1) or § 71.6(c)(1).

This interim final rule does not affect the scope of the title V monitoring requirements as previously construed by the D.C. Circuit in NRDC and Appalachian Power, or as set forth in EPA's Pacificorp and Fort James orders. Rather, the purpose of this interim final rule is simply to clarify that under §§ 70.6(c)(1) and 71.6(c)(1), all title V permits must include monitoring sufficient to assure compliance with the permits' terms and conditions, as required by Act sections 504(a), 504(b), 504(c), and 114(a)(3). As stated above, the purpose is to eliminate any possible confusion about the scope of the sufficiency monitoring provisions at §§ 70.6(c)(1) and 71.6(c)(1) that may arise due to their prefatory references to the periodic monitoring provisions at §§ 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B).

The EPA intends to conduct two additional rulemakings related to this interim final rule. First, elsewhere in today's Federal Register , EPA is proposing to revise §§ 70.6(c)(1) and 71.6(c)(1) to make the same changes as this interim final rule through an expedited notice-and-comment rulemaking process. The EPA is soliciting comments on that proposal. The EPA intends that the proposed changes would be promulgated as a final rule and would become effective when this interim final rule sunsets. In addition, EPA intends to initiate a second notice-and-comment rulemaking process to consider more comprehensively means of meeting the statutory monitoring requirements.

The EPA is using the good cause exception under the Administrative Procedure Act (APA) to take the actions set forth in this interim final rule without prior notice and comment. See 5 U.S.C. 553(b)(3)(B). Section 553(b) of the APA generally requires that any rule to which it applies be issued only after the public has received notice of, and had an opportunity to comment on, the proposed rule. However, section 553(b)(3)(B) exempts from those requirements any rule for which the issuing agency for good cause finds that providing prior notice-and-comment would be impracticable, unnecessary, or contrary to the public interest. Thus, any rule for which EPA makes such a finding is exempt from the notice-and-comment requirements of section 553(b).

The EPA believes that the circumstances here provide good cause to take the actions set forth in this interim final rule without prior notice and comment, because providing prior notice and comment would be unnecessary and contrary to the public interest. In light of the short time period that this interim final rule will be in effect and the parallel, expedited notice-and-comment rulemaking to consider promulgating the same changes to §§ 70.6(c)(1) and 71.6(c)(1) as a final rule to provide clarification beyond the near term, EPA believes that soliciting public comment on this interim final rule is unnecessary. The public will have an opportunity to comment on the proposal for the parallel rulemaking, published elsewhere in today's issue of the Federal Register . Furthermore, EPA believes that soliciting public comment on this interim final rule would be contrary to the public interest because it is in the public interest to eliminate any possible confusion surrounding the scope of the sufficiency monitoring provisions, §§ 70.6(c)(1) and 71.6(c)(1), as soon as possible given the importance of monitoring to carrying out title V's mandates that all title V permits assure compliance with all applicable requirements under the Act.

The EPA is also using the APA's good cause exception to make this interim final rule immediately effective. See 5 U.S.C. 553(d)(3). Section 553(d) of the APA generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . However, section 553(d)(3) provides that if the issuing agency has made a finding of good cause and published its reasoning with the rule, the rule may take effect earlier. The EPA has determined that good cause exists to revise §§ 70.6(c)(1) and 71.6(c)(1) in this interim final rule without prior notice-and-comment, because prior notice-and-comment would be unnecessary and contrary to the public interest for the reasons stated above. Based on this determination, EPA is making this interim final rule immediately effective.

This interim final rule is limited to the removal of the prefatory phrase “[c]onsistent with paragraph (a)(3) of this section” from §§ 70.6(c)(1) and 71.6(c)(1) in order to clarify the scope of these provisions. This interim final rule does not address any other issues related to title V monitoring, such as the type of monitoring required under the periodic monitoring provisions, §§ 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), or under the sufficiency monitoring provisions, §§ 70.6(c)(1) and 71.6(c)(1). As indicated above, EPA is proposing elsewhere in today's Federal Register to revise §§ 70.6(c)(1) and 71.6(c)(1) to make the same changes as this interim final rule through an expedited notice-and-comment rulemaking process. The EPA is soliciting public comment on that proposal. The EPA expects to consider comments on other issues relating to title V monitoring during the comprehensive rulemaking that is also planned and described above.

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

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

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

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

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

Under Executive Order 12866, it has been determined that this proposed rule is a “significant regulatory action” and is therefore subject to OMB review. Today's proposed rule raises important legal and policy issues associated with the court's decisions in Appalachian Power and NRDC and EPA's adjudicatory orders in Pacificorp and Fort James. Therefore, this action is a “significant regulatory action.”

Title II of the Unfunded Mandates Reform Act (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, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rule that “includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more * * * in any one year.” A “Federal mandate” is defined to include a “Federal intergovernmental mandate” and a “Federal private sector mandate.” [2 U.S.C. 658(6)]. A “Federal intergovernmental mandate,” in turn, is defined to include a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” [2 U.S.C. 658(5)(A)(i)], except for, among other things, a duty that is “a condition of Federal assistance.” [2 U.S.C. 658(5)(A)(i)(I)]. A “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector,” with certain exceptions [2 U.S.C. 658(7)(A)].

Before promulgating a 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 where 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, EPA 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 our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined under the regulatory provisions of title II of the UMRA that this interim final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. Today's interim final rule imposes no new requirements but rather clarifies existing requirements. Because we have made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act (APA) or any other statute [ see section IV.A. (“Need for an Interim Final Rule”) of this preamble], and because it is merely intended to clarify existing requirements, it is not subject to sections 202 and 205 of the UMRA.

In addition, EPA has determined that this interim final contains no regulatory requirements that might significantly or uniquely affect small governments because it imposes no new requirements and imposes no additional obligations beyond those of existing regulations. Therefore, today's interim final rule is not subject to the requirements of section 203 of the UMRA.

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

This interim 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. Today's rule will not impose any new requirements but rather will clarify existing requirements. Accordingly, it will not alter the overall relationship or distribution of powers between governments for the part 70 and part 71 operating permits programs. Thus, Executive Order 13132 does not apply to this interim final rule.

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

This interim final rule 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 in Executive Order 13175. Today's action does not significantly or uniquely affect the communities of Indian tribal governments. As discussed above, today's action imposes no new requirements that would impose compliance burdens beyond those that would already apply. Accordingly, the requirements of Executive Order 13175 do not apply to this rule.

Today's interim final rule is not subject to the RFA, which generally requires an agency to prepare a regulatory flexibility analysis of any rule that will have “a significant economic impact on a substantial number of small entities.” The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because EPA is using the good cause exception under section 553(b)(3)(B) of the APA to take the actions set forth in this interim final rule without prior notice and comment. See section IV.A., (“Need for an Interim Final Rule”) of this preamble for more information on the good cause exemption cited for this interim final rule.

Although this interim final rule is not subject to the RFA, EPA has nonetheless has assessed the potential of this rule to adversely impact small entities subject to the rule and concluded that it will have no adverse impact on small entities because it adds no new requirements, and merely clarifies existing requirements.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that the EPA determines is (1) “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.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risk, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This interim final rule is not subject to Executive Order 13045 because it is not “economically significant” under Executive Order 12866 and it does not establish an environmental standard intended to mitigate health and safety risks.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 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 bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The NTTAA does not apply to this interim final rule because it does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

This interim final rule does not impose any new information collection requirements beyond those already required under existing part 70 and part 71 rules. Therefore, revision to the existing information collection request documents for these rules is not required. The information collection requirements for parts 70 and 71 were previously approved by OMB under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is assigned ICR number 1587.05 and OMB number 2060-0243; for part 71, the ICR number is 1713.04 and the OMB number is 2060-0336. A copy of these ICRs may be obtained by mail to: Director, Collection Strategies Division (2822), Office of Environmental Information, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A copy may also be downloaded off the internet at http://www.epa.gov/icr.

This interim final rule is not a “significant energy action,” as defined in 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 likely to have a significant adverse effect on the supply, distribution, or use of energy. As noted earlier, this action would simply clarify existing requirements and would not impose any new requirements, and thus would not affect the supply distribution, or use of energy.

Section 307(b)(1) of the Act indicates which Federal Courts of Appeals have venue for petitions for review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the D. C. Circuit: (i) When the agency action consists of “national applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This interim final rule is of nationwide scope and effect for purposes of section 307(b)(1) because it revises EPA's part 70 and 71 operating permits programs. Thus, any petitions for review of this interim final rule must be filed in the D. C. Circuit within 60 days from September 17, 2002.

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States.

Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of September 17, 2002. See section IV.A. (“Need for an Interim Final Rule”) of this preamble. The EPA will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This interim final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPP-2002-0057. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfrpart 180_00.html , a beta site currently under development.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select search, then key in the appropriate docket ID number.

You may submit your comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-2002-0057 in the subject line of the first page of your response. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. By mail . Submit your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

2. In person or by courier . Deliver your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA. The PIRIB is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

3. Electronically . You may submit your comments electronically by e-mail to: opp-docket@epa.gov, or you can submit a computer disk as described above. Do not submit any information electronically that you consider to be CBI. Avoid the use of special characters and any form of encryption. Electronic submissions will be accepted in WordPerfect 6, Suite 8, or ASCII file format. All comments in electronic form must be identified by docket control number OPP-2002-0057. Electronic comments may also be filed online at many Federal Depository Libraries.

Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternative ways to improve the final rule or collection activity.

7. Make sure to submit your comments by the deadline in this final rule extension.

8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

On February 25, 2002, March 19, 2002, and May 7, 2002, the Natural Resources Defense Council (NRDC) filed objections with EPA regarding final rules establishing certain tolerances under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, for the following eight pesticides:

1. Imidacloprid;

2. Mepiquat;

3. Bifenazate;

4. Zeta-cypermethrin

5. Diflubenzuron;

6. Halosulfuron methyl;

7. Pymetrozine; and

8. 2,4-D.

NRDC's objections concern a number of issues under section 408 of the FFDCA including the additional 10x safety factor for the protection of infants and children and aggregate exposure to pesticide chemical residues. On June 19, 2002 (67 FR 41628) (FRL-7167-7), the Agency announced the availability of, and sought public comment on these objections. EPA has received requests to extend the comment period. In the Federal Register of August 16, 2002 (67 FR 53505) (FRL-7193-6), EPA extended the comment period until September 17, 2002. The objections are available on EPA's Web site at http://www.epa.gov/opprd001/nrdc_objections/ .

Due to difficulty in posting NRDC's tolerance objections onto the EPA web page, EPA is extending the comment period on the NRDC objections to October 16, 2002.

On March 5, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Liferaft Servicing Intervals” in the Federal Register (67 FR 9939).

On March 14, 2002, the Federal Register (67 FR 11549) published a correction for the table entitled “Current and Proposed Intervals for Initial Servicing of Liferafts on Commercial, Non-Solas Vessels” that was in the preamble of the NPRM.

This rule amends the Coast Guard's commercial vessel regulations to provide consistency in the requirements for servicing of inflatable liferafts and IBAs. It harmonizes the servicing intervals specified in the vessel regulations in 46 CFR subchapters I-A, K, R, T, and W with the general requirement in the liferaft regulations at 46 CFR 160.151-57 in subchapter Q, consistent with the stated intent of that regulation. This rule will eliminate the confusion caused by ambiguous or conflicting provisions in the various commercial vessel regulations, and reduce the burden on the public by avoiding potential unnecessary servicing of new inflatable liferafts.

In addition, to maintain internal consistency, the rule revises §§ 169.513(b) and 169.531 in 46 CFR subchapter R (sailing school vessels) to update requirements for obsolete types of liferafts that are no longer manufactured. The revised sections require comparable types of liferafts that are approved and manufactured under current regulations, but allow existing liferafts on the vessel to remain in use as long as they are in good and serviceable condition. Additional conforming editorial changes to the commercial fishing industry vessel regulations in 46 CFR subchapter C, and to subchapter L, harmonize the specific wording between the various individual vessel subchapters to the extent possible.

Because of its unique structure, subchapter W, which contains liferaft-servicing requirements referenced by various subchapters, necessitated a slightly different approach than the other vessel subchapters. Amendments were made to two sections in subchapter W, 46 CFR 199.190 and 199.620, which included a correction of an existing error in table 199.620(a). You can find additional background information on this rule in the preamble of the NPRM (67 FR 9939, March 5, 2002).

As authorized by 5 U.S.C. 553(d)(1) and (3), we are making this rule effective September 30, 2002—less than 30 days after its publication in the Federal Register . This final rule relieves a regulatory burden by deferring the first servicing of a new liferaft or IBA to 2 years on all commercial vessels not certificated under the International Convention for the Safety of Life at Sea (SOLAS). In addition, good cause exists for making the rule effective before October 1, 2002, because by doing so we ensure that the rule will be codified in 46 CFR this October rather than October 2003.

The Coast Guard received two letters commenting on the proposed rule. One letter was from a liferaft servicing facility, and the other was from the Ferry Division of a state Department of Transportation. No public hearing was requested and none was held. We did not make any changes to the rule based on the comments we received.

The comment received from a state public ferry agency, while noting that it probably fell outside of the scope of the rulemaking, suggested that the servicing interval for inflatable liferafts and inflatable buoyant apparatus on non-SOLAS vessels on inland routes should be extended from annually, as currently required, to once every 2 years. The letter cited as justification that most items of equipment packed inside liferafts have a service life of at least 3 years, and that the risk of incidental damage and wear from removing the survival craft from its container for annual servicing is greater than the risk of extending the service interval.

The Coast Guard agrees that the suggestion is outside the scope of the rulemaking. Moreover, the suggestion is not supported by any currently available data. The requirement for annual servicing is supported by decades of satisfactory operational experience. Contrary to the assertion that removing the unit from its container annually for servicing imposes unnecessary wear and tear and increases the possibility of incidental damage, there is evidence that unfolding, inflating, and repacking the liferaft may actually serve to avoid degradation of the fabric coating at the creases.

A comment from a liferaft servicing facility suggested that the meaning of “installation date” needed to be clarified. This term, however, is not used anywhere in the existing or proposed rules.

Servicing intervals are measured throughout from the time the liferaft was “serviced or first packed,” with extensions permitted for time the liferaft spends indoors in controlled temperature storage. Thus, the significant date is not the date of installation, but rather the date the liferaft leaves controlled indoor storage. Whether the appropriate servicing interval is one year (for a SOLAS raft, or any other raft that is not new) or two years (for a new raft on a non-SOLAS ship), the time period for the appropriate servicing interval starts at the time the raft leaves controlled indoor storage as specified in 46 CFR 160.151-57(n)(2)-(3). We are working with the liferaft industry to explore methods to improve implementation of the sticker requirements for liferafts held in storage, with the goal of maximizing the effectiveness of the sticker system for both vessel operators and enforcement personnel.

The same letter suggested that in order to accommodate the proposed rules, manufacturers of liferafts and liferaft components would need to change their instructions to servicing facilities, since in many cases equipment items ( e.g. , repair cements, batteries) require annual replacement. This is already addressed, however, in 46 CFR 160.151-57(n)(1)(i), which specifies that in order to apply the extended service interval for a new liferaft, dated survival equipment in the liferaft must not expire before the expiration date of the servicing expiration sticker. Each manufacturer has the option of providing suitable equipment to allow for the extension of the initial servicing interval.

A comment from the servicing facility agreed with the extension of servicing intervals to coincide with scheduled vessel inspections, but suggested that a vessel operator should have to demonstrate reasonable justification, and request and obtain approval in writing of the extension from the Officer in Charge, Marine Inspection (OCMI). Since the grounds for the extension are clear and specific in the rule, we disagree that any justification, beyond evidence that an inspection for certification is scheduled within 5 months of the servicing expiration date, is needed. Consequently, we do not see any need to impose an administrative burden on both the vessel operator and the OCMI to obtain an extension, which should, in fact, be automatic if the specified condition is met.

A final comment from the servicing facility suggested that the extension of the servicing interval for liferafts should specifically exclude extension of the replacement of a hydrostatic release unit used with the liferaft. The comment noted that some vessel operators conveniently assume that the two are serviced together. While we agree that the extension of servicing intervals permitted by this rule applies only to liferafts or IBAs, and not to any hydrostatic release units used in their securing arrangements, we do not agree that it is necessary to specify in the rule those items to which it does not apply. Hydrostatic release units have their own servicing or replacement dates, and can be easily replaced by a vessel operator without removing the liferaft or IBA they secure.

We are adopting our proposed rule as our final rule without any changes.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential benefits and costs under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979). A Regulatory Evaluation supporting this conclusion is available in the docket as indicated under ADDRESSES. A summary of that analysis follows:

Assessment: We analyzed benefits and costs of deferring the first liferaft servicing to 2 years (instead of 1 year) after initial packing for any non-SOLAS vessel subject to the liferaft servicing requirements in subchapters I-A, K, R, T, or W. There are 5,965 vessels that will be affected, for which we assumed a zero population growth rate. Furthermore, we assumed that vessels would carry 25-person liferafts with an average lifespan of 12 years, and that the number of liferafts carried by each vessel would be a function of the crew size and the passenger capacity of each vessel.

Benefits: The total present value benefit for this rule for the 10-year period will be $7,700,824 (7 percent discount rate). Owners and operators of affected vessels will accrue benefits as reduced operating costs. These benefits are a function of (1) the number of liferafts that will no longer be required to be serviced the first year after manufacture and (2) the fees imposed by the servicing companies.

In addition, we recognize that other benefits of the rule exist but cannot be quantified, particularly the easing of confusion of both the public and Coast Guard personnel caused by vague and conflicting provisions. Furthermore, vessel owners will benefit by eliminating the opportunity cost of time associated with liferaft servicing during the first year after manufacture. Therefore, the total benefits may be higher if the qualitative benefits were represented in monetary terms.

Costs: This rule will not impose costs on vessel owners and operators. In view of the stringent production testing and inspections to which new liferafts are subjected, and the lack of any history over the last 10 years of operational problems associated with new liferafts where servicing has been deferred, the Coast Guard does not believe the rule will have any adverse impact on the safety of liferafts and IBAs.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) and Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

Since this rulemaking will not impose costs on owners or operators of affected vessels there are no economic impacts on small entities. The rule provides benefits as reduced maintenance time and operating costs for all entities by deferring the first liferaft servicing from 1 year to 2 years after initial packing.

The Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities because there are no costs to vessel owners/operators associated with the rule.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Kurt Heinz at 202-267-1444. We asked for comments during the NPRM rulemaking process. We did not receive comments specifically related to small business entities.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(d), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This rule resolves inconsistencies in required intervals for liferaft servicing and therefore will not have any impact on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

The Federal Communications Commission is modifying § 0.467(a) of the Commission's rules. This rule pertains to the charges for searching and reviewing records requested under the FOIA. The FOIA requires federal agencies to establish a schedule of fees for the processing of requests for agency records in accordance with fee guidelines issued by the Office of Management and Budget (OMB). In 1987, OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines. However, because the FOIA requires that each agency's fees be based upon its direct costs of providing FOIA services, OMB did not provide a unitary, government-wide schedule of fees. The Commission based its FOIA Fee Schedule on the grade level of the employee who processes the request. Thus, the Fee Schedule was computed at a Step 5 of each grade level based on the General Schedule effected January 1987 (including 20 percent for personnel benefits). The Commission's rules provide that the Fee Schedule will be modified periodically to correspond with modifications in the rate of pay approved by Congress. See 47 CFR 0.467(a)(1) note.

In an Order adopted on August 13, 2002 and released on September 6, 2002 (DA-02-0901), the Managing Director revised the schedule of fees set forth in 47 CFR 0.467 for the recovery of the full, allowable direct costs of searching for and reviewing agency records requested pursuant to the FOIA and the Commission's rules, 47 CFR 0.460, 0.461. The revisions correspond to modifications in the rate of pay, which was approved by Congress.

These modifications to the Fee Schedule do not require notice and comment because they merely update the Fee Schedule to correspond to modifications in rates of pay, as required under the current rules.

Accordingly, pursuant to the authority contained in § 0.231(b) of the Commission's rules, 47 CFR 0.231 (b), it is hereby ordered, that, effective on September 17, 2002, the Fee Schedule contained in § 0.467 of the Commission's rules, 47 CFR 0.467, is amended, as described herein.